Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward
22 October 2022
E-ISBN 978-967-491-267-3
p. 275-288
22. THE DOCTRINE OF DOMICILE IN
CONFLICT OF LAWS: A CRITICAL ANALYSIS
Moin Uddin
PhD Candidate, Faculty of Law,
University of Malaya
Email: [email protected]
ABSTRACT
The doctrine of domicile provides dualistic character in the conflict of laws. It is a
legal terminology used in international law to describe the relationship between
an individual and an independent state. It expresses global legal solidarity with
internal recognition and implementation and autonomous activities on personal
matters. This study intends to demonstrate the nature and function of domicile in
determining personal legal identity in the conflict of laws. The researcher has
utilised qualitative approach to deliberate the research and to gather research data.
This study has revealed that domicile arises with several foreign features in sui
generis since it is dependent on the judicial system, the type of conflicts, and the
covenants supported by the domestic laws of the specific country. This study has
also asserted that domicile can be used universally in all similar situations since
there are not many significant variations in the application of each personal
connecting factor. Therefore, it is expected that the research findings will
contribute to determining precise character of domicile to facilitate decision
making process in international justice system.
Keywords: Conflict of laws, Domicile, Global legal solidarity, Personal matters.
I. INTRODUCTION
Domicile is typically used as the home country of a person in international law or a country
where he plans to live permanently.1080 It is also considered as a personal connecting factor in
judicial system of common law.1081 This terminology is usually understood to identify the
legal connection between a person and his permanent dwelling place.1082 It establishes a
unique legal identity of a person even if that person does not have a permanent residence.
This idea examines the uniqueness of dwelling of a person and confirms a domicile in an
aspect that nobody is free from a domicile.1083 However, a person can never prove that he has
1080 Mary Keyes, “Jurisdiction in International Family Litigation: A Critical Analysis,” University of New South
Wales Law Journal 27, no. 1 (2004): 45.
1081 Dicey and Morris, The Conflict of Laws, 12th ed. (London: Sweet & Maxwell, 1993), 115.
1082 US Legal, “Distinctions Between Domicile and Residence,” https://domicile.uslegal.com/distinctions-
between-domicile-and-residence/ (accessed July 11, 2022).
1083 McClean and Morris, The Conflict of Laws, 4th ed. (London. Sweet and Maxwell, 1993): 12.
Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward
more than one domicile in a specific time.1084 The present domicile always continues and
prevails until a change on the balance of probabilities is proven.1085 If the current domicile of
a person cannot be established, domicile of origin will be taken into consideration. The
burden of proof for changing a domicile of origin is very high.1086
The establishment of domicile for an individual at a given time is very important to
specify the legal status of that individual in international law. It forms the legality of a person
to marry and to distribute the property of a deceased person.1087 For instance, if there is a
conflict of the legality of a marriage of an individual in a foreign country, the case will be
judged based on the domicile of that parson. If a married person is permanently living in
Malaysia and his domicile is proven is Malaysia, his divorce or dissolution of marriage will
be judged based on Malaysian jurisdiction. If this person is died in Malaysia, his properties
will also be distributed based on Malaysian properties distribution laws. The importance of
identifying domicile of a person is increasing in this modern time as people are easily
relocating from one country to another. The question of domicile is mostly arising to know
legal status of a person when he is travelling, and which jurisdiction will be specifically
relevant to examine the legality of his contracts, marriage, and other legal matters. The
passport system reduces the difficulties of finding a legal position of a person in the
contemporary time. This study aims to explain the doctrine of domicile profoundly and its
application in the conflict of laws.
II. DEFINITION OF DOMICILE AND ITS ORIGIN
Domicile is a fixed, and permanent home1088 where a person lives in and always plans to
return.1089 It treats a significant connection with the person and a state.1090 Domicile is a legal
concept that differs from the idea of a permanent residence. No legal study provides any
distinct definition of domicile while it entails two fundamental components which must be
existed for establishing domicile of a person such as physically present and desire to stay
permanently.1091 The elements of domicile not only go beyond the prerequisite of acquiring a
permanent residence in a state, but also require the intention to remain there continuously or
indefinitely.1092
Domicile, from a legal perspective, refers to the position or allocation of becoming a
permanent resident in a particular jurisdiction. A domicile of a person will be remained under
a particular jurisdiction as long as he is maintaining an adequate link with that state or not
exhibiting any free intention to depart that country permanently. To form a new domicile, the
person needs to move from one state to another state with full intention that he will be
dwelling there forever. For instance, in the Waicker V Hume1093 case where a Scottish man
moved to East Indies and worked in a business company there for about twenty years. He
1084 Patrick J. Borchers, “The Choice-Of-Law Revolution: An Empirical Study,” Washington and Lee Law
Review 49, no. 2 (Spring 1992): 357-361.
1085 Law Teacher, “Domicile in Common Law Systems” (2019), https://www.lawteacher.net/free-law-
essays/commercial-law/domicile-in-common-law-systems-commercial-law-essay.php#ftn34 (accessed July 11,
2022).
1086 Dicey and Morris, The Conflict of Laws (1993): 122.
1087 Law Teacher, “The Legal Concept of Domicile,” September 22, 2021, https://www.lawteacher.net/free-law-
essays/family-law/domicile.php (accessed July 10, 2022).
1088 Robert C. Lawrence III and Elisa Shevlin Rizzo, “Basic Conflict of Laws Principles,” A Guide to
International Estate Planning (American Bar Association, 2000): 4.
1089 Dicey and Morris, The Conflict of Laws (1993): 117.
1090 Keyes, Mary, “Jurisdiction in International Family Litigation: A Critical Analysis,” (2004): 46-47.
1091 Peter Stone, Conflict of laws (London and New York, Longman law series, 1995): 129.
1092 LEX 47, “Conflict of laws: Domicile under International Law,” Scribd.com, https://www.scribd.com/doc/
19446932/Domicile-under-international-law (accessed July 22, 2022).
1093 (1858) 10 HLC 124.
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then returned to Scotland, registered his name with the municipal authorities, bought a house,
got married, started a new business, and joined several local societies. He later departed
Scotland in anger, shut down his business, withdrew his name from all books and society
records, and made a vow never to return. Then he moved to London, where he worked as a
writer and attempted to sell his several books written in the Hindostanee language. After a
few years there, he relocated from London to Paris to avoid some problems. He never
announced his intention to return or leave London permanently. He left a will in the English
custom when he passed away in Paris. The Court ruled that the person obtained an English
domicile and lost his Scottish domicile. Lord Chelmford defined domicile in this case as “A
place is perfectly the domicile of an individual in which he has willingly fixed the dwelling of
himself and his family, not for a mere special or temporary purpose but with a present
intention of permanent home...”.1094 Similarly, Lord Cranworth expressed domicile as,
“Domicile means home, the permanent home; and if you do not understand your permanent
home, I am afraid that no illustration drawn from foreign writers or foreign languages will
very much help you to it”.1095 A domicile is defined, for judicial purposes, as a fixed
habitation, where the person intends to make his principle residence.1096
The modern Canonist believes that the doctrine of domicile is derived from Roman
law,1097 and the English Canon Law gave its foundation to contemporary law. The word
“domicilium,” which later domicile in English notion, comes from the Roman “domum
colere,” which means to foster or occupy a house. The meaning of the Roman term indicates
that domicile is a place of habitual residence rather than just any place of living.1098 It is
found from the common law history that the Diocese is empowered to judge its ordinary
people in the English Consistory Court and domicile of a person is considered as his habitual
residence.1099 Therefore, English laws implements marriage of a person based on his dwelling
place.
Every legal act of a person is governed by the lex fori or the law of the place1100 and
domicile connects the person to a jurisdiction of a place. The concept of domicile assists a
court in the case of conflict of laws to identify which laws and which country’s jurisdiction
will be applicable to administer legal acts of an individual. It also clarifies before a court the
factual situation and jurisdiction of a particular case.1101
III. DOMICILE CANNOT BE DEFINED WITH ACCURACY
The common law makes no definitive rules for how to determine domicile of an individual. It
is evident from the numerous judgements in many cases. The landmark indication can be
found in the case of Whicker v Hume.1102 In this case, the domicile of a person defined as
“permanent home.” However, the court rejected such domicile in many other cases such as a
person was living many years in a place, but the court decided that the person did not acquire
1094 Legal Rescue, “The Law of Domicile,” January 9, 2013, http://legalrescue.blogspot.my/2013/01/the-law-of-
domicile.html (accessed July 19, 2022).
1095 Albert Venn Dicey, The conflict of laws, 12th ed. (London. Sweet & Maxwell, 1994-1993): 115.
1096 Snyder v. McLeod, 971 So. 2d 166 (Fla. Dist. Ct. App. 5th Dist. 2007).
1097 Nikolaos A. Davrados, “Nationality, domicile, and private international law revisited,” Essays in Honour of
Nestor Courakis (2017): 129.
1098 Law Teacher, “The Legal Concept of Domicile.”
1099 The Law Reform Commission, “Domicile and habitual residence as connecting factors in the conflict of
laws,” Ireland: LRC WP 10 (1981): 97.
1100 John. D. Falconbridge, Essays on the conflict of laws, 2nd ed. (Toronto, Canada Law Book, 1954): 728.
1101 Kitime Eliud, “The Personal Connecting Factors and the Conflict of Laws: The Margosa to the Choice of
Laws in Resolution of Dispute Containing Foreign Elements,” https://www.academia.edu/7786889/
the_personal_connecting_factors_and_the_conflict_of_laws (accessed July 07, 2022).
1102 [1858] 7 HLC 124.
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the domicile of that country. For instance, Ramsay v Liverpool Royal Infirmary1103 case, a
Scottish domiciled person moved to Liverpool. He lived there about 36 years and later he
never put his foot stem in Scotland in his life. The House of Lords decided that the person
had the domicile of Scotland at time of his death. Similarly, in Cyganik v Agulian1104 case,
the person was living in England for about 43 years, but the court investigated about his
whole life1105 and decided that the person did not obtain the English domicile and his
domicile of origin in Cyprus is remained. Furthermore, in the case of Winans v AG,1106 a
person was staying in England for 37 years and did not go back to his country of domicile of
origin for last 47 years. However, the court decided ruled that the person did not lose his
domicile of origin. Therefore, it can be evidently acknowledged that the identification of
domicile is not a certain process, but it is very vague in nature.
IV. IMPORTANCE OF DOMICILE IN THE CONFLICT OF LAWS
Domicile is one of the crucial factors in decision-making process in a court of justice. It
offers an option to the court to estimate and accept an international jurisdiction or the
necessity estimation of the forum jurisdiction. It affirms fundamental rights of an individual,
including his ability to vote, get a public office and other political and civil rights.
Additionally, it determines the eligibility for a variety of services in relation to necessities
like unemployment or ill health as well as the obligation to pay a variety of taxes in the
state.1107 Furthermore, it ensures jurisdiction of family matters of an individual like his
marriage and matrimonial property.1108 Moreover, it determines a person's ability to sign
contracts and to ratify matrimonial cases, wills,1109 marriages, divorces, and other legal
transactions as well as succession.1110 All these facilities cannot be ensured without
establishing domicile of a person.
V. RULES OF DOMICILE
Domicile creates several rules under conflict of laws to connect an individual to a
jurisdiction. Its main rules can be categorised into five major doctrines1111 which are ruled in
the case of Mark v Mark.1112 The first doctrine is that everyone is attached to a domicile
which is known as domicile of origin. When a child is born, he achieves the domicile of
origin by law. Thus, a legitimate child acquires domicile of his father, whereas an illegitimate
child obtains domicile of his mother by birth. In addition, the domicile of a founding person
is in the location where he was discovered.1113 A person always maintains the domicile of
origin until he legally establishes a new domicile in a jurisdiction. The second doctrine is that
international law prohibits a person from having two domiciles simultaneously. He might
stay different states as a residence, but his legal actions will be governed under one
jurisdiction based on his domicile which will be identified by looking to connecting factors.
1103 [1930] AC 588.
1104 [2006] 1 FCR 406.
1105 Dicey, Morris & Collins, The Conflict of Laws (London. Sweet & Maxwell 2007): 10.
1106 [1904] AC 289.
1107 Law Teacher, “The Legal Concept of Domicile.”
1108 Elmira Serikkeldinovna Abdrakhmanova and Lyazzat Begimjanovna Nyssanbekova, “Treatment of
Domicile Concept in International Private Law,” Middle-East Journal of Scientific Research 16, no. 12 (2013):
1690.
1109 Lawrence III, Robert C., and Elisa Shevlin Rizzo, “Basic Conflict of Laws Principles,” (2000): 13.
1110 Falconbridge, John D., Essays on the conflict of laws, (1954): 726.
1111 Law Teacher, “The Legal Concept of Domicile.”
1112 [2005] UKHL 42.
1113 The Law Commission and The Scottish Law Commission (Law Com. No. 168) (Scot. Law Com. No. 107),
Private International Law: The Law of Domicile: 4.
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The third doctrine is that a domicile ties an individual in a regional legal system. It does not
mean to have same principles for everyone in a state because every class or every category of
people will have different rules based on religion, custom, and race. The fourth doctrine is
that everyone will presume that his current domicile will continue unless a change is proven
on balance of probability. The proof of changing a domicile of origin must be heavy one. The
fifth doctrine is that in common law practicing countries if there is no statutory exception, the
identification of domicile will be based on English Common law.1114 In the case of Re
Annesley,1115 a British man was living in France. When the issue of conflict of laws arises
about the domicile of the person, the court decided that his domicile is established based on
English law as lex fori.
VI. CLASSIFICATION OF DOMICILE
The doctrine of domicile is classified into three categories namely (a) domicile of origin, (b)
domicile of choice and (c) domicile of a dependent person. All these categories of domicile
are going to be discussed in the following sections.
6.1 Domicile of Origin
The domicile of origin is acquired by birth which is the main feature.1116 It is usually
acknowledged by the law of the birthplace. A domicile of origin is typically derived from the
domicile of the parent.1117 However, other family members might live in different place and
obtain different domicile by choice at the same time. A domicile of origin carries from
generation to generation.1118 The landmark case of this principle is Whicker v Hume1119 where
Lord Cranworth had ruled that the place of permanent home is the domicile of a person, but a
domicile of origin is achieved by the law of the birthplace. It does not mean that this domicile
is established in the state where the family is living permanently. However, it will follow the
domicile of the one or both parents. This principle was illustrated by Dicey and Morris, and
they claimed that “Every person receives at birth a domicile of origin;
(a) A legitimate child born during the lifetime of his father has his domicile of origin
in the jurisdiction in which his father was domiciled at the time of his birth.
(b) A legitimate child not born during the lifetime of his father, or an illegitimate
child has his domicile of origin in the jurisdiction in which his mother was
domiciled at the time of his birth.
(c) A foundling has his domicile of origin in the jurisdiction in which he was
found.”1120
The domicile of origin is acquired by the operation of law of the state where the person
is born.1121 It is not necessarily depending on the birthplace or parents’ residence but
depending on the domicile of the parents. There is also no need to have a link among the
birthplace and the domicile of origin.1122 This ruling was governed in the case of Udny v
1114 Friedrich K. Juenger, “Conflict of Laws: A Critique of Interest Analysis,” American Journal of
Comparative Law 32, no. 1 (Winter 1984): 44.
1115 [1926] Ch 692.
1116 Davrados, Nikolaos A., “Nationality, domicile, and private international law revisited,” (2017): 129-30.
1117 Dicey, Albert Venn, The conflict of laws (1994- 1993): 124.
1118 Eliud, Kitime, “The Personal Connecting Factors and the Conflict of Laws: The Margosa to the Choice of
Laws in Resolution of Dispute Containing Foreign Elements.”
1119 [1858] 7 HLC 124,
1120 Dicey, Albert Venn, The conflict of laws (1994-1993): 124.
1121 Udny v. Udny (1869) LR 1 HL 441.
1122 Peter North, Private International Law Problems in Common Law Jurisdiction (London. Martinus Nijhoff
Publishers, 1993): 7.
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Udny1123 where the person was living in Tuscany from his birth. His parents were residing in
England while their domicile of origin was Scotland. The court decided that the parson
obtained his domicile of origin by operation of law at birth.
When a baby is born after the father’s death or when an illegitimate baby is later given
legitimacy, the mother’s domicile will be considered as the domicile of origin of that
baby.1124 Similarly, adoption is also considered as a lawful child by a lawful marriage where
the domicile of the adoptive parents will be communicated to the adopted child.1125 Likewise,
a founding child or an illegitimate child whose parents were unknown would obtain the
domicile of the place where the child was found because his domicile of origin is totally
unidentified. In the case of Re McKenzie,1126 the court accepted the domicile of the place
where an illegitimate child was found as his domicile of origin was unknown to the
people.1127
6.1.1. Tenacity of Domicile of Origin and Its Revival in the Conflict of Laws
A domicile of origin connects a person more rationally to a society. It is very hard to lose as it
is obtained at the time of birth of the person. It is always revived when a person fails to
acquire his domicile of choice. Wherever the person goes, the domicile of origin continuously
follows him. It is even the most powerful domicile in the conflict of laws as if the person
leaves the state with the intention that he will never return, it follows the person until he
achieves his new domicile. The domicile of origin will remain with the person even he will
never visit the particular state unless he will obtain a new domicile. This situation was
examined by the House of Lords in the case of Bell V Kennedy1128 where the person was
holding the domicile of origin of Jamaica, later he was confused to obtain domicile of
Scotland or England. In these facts, the court decided that the person did not lose his
Jamaican domicile of origin. In this case, Lord Westbury ruled that “The domicile of origin
adheres until a new domicile is acquired.” The court also ruled similar principles in many
other cases like Grant v Grant,1129 Ramsay v Liverpool Royal Infirmary,1130 Cyganik v
Agulian,1131 Winans v AG,1132 and IRC v Bullock.1133 Thus, the tenacity of domicile of origin
guarantees that every person hold only one domicile at a time and a change of this domicile
must be established with heavy proof.
The domicile of origin is a fundamental principle for connecting a person to a
jurisdiction under conflict of laws. The landmark case of the establishment of the domicile of
origin is Udny v Udny1134 where the court significantly ruled that the domicile of origin is
persistently connected to a person and it’s very hard to lose. If a person alleges of accepting a
domicile of origin, he must prove the establishment of any other domicile with hight standard
of evidence which was highlighted in two cases namely Henderson v Henderson1135 and
Cramer v United States.1136 In the case of Henderson v Henderson, Sir Jocelyn had proposed
1123 (1869) LR 1 HL 441.
1124 Udny v. Udny (1869) LR 1 HL 441.
1125 Dicey, Albert Venn, The conflict of laws (1994- 1993): 125.
1126 (1951) 51 S.R. (N.S.W.) 293.
1127 The Law Commission and The Scottish Law Commission: 4.
1128 [1868] LR 1 Sc and Div 307.
1129 AC 37658.
1130 [1930] AC 588.
1131 [2006] 1 FCR 406.
1132 [1904] AC 289.
1133 [1976] 1 WLR 1178.
1134 (1869) LR 1 HL 441.
1135 [1843-60] All E.R. Rep. 378; 67 E.R. 313; (1843) 3 Hare 100.
1136 325 U.S. 1 (1945).
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that the standard of proof of changing a domicile of origin goes beyond a mere balance of
probabilities. However, Scarman J has rejected the standard in the case of Re Fuld Estate
(No3)1137 and reaffirmed the decision of the Court of Appeal in Buswell v IRC1138 where such
high standard of proof was required only for criminal cases.
A domicile of origin can never be lost permanently though it can be changed with
domicile of choice.1139 Due to the complexity of the law it is very difficult to achieve a
domicile of choice while it is very fundamental to acquire a domicile of origin by birth. If the
domicile of choice of a person is rejected, his domicile of origin revives immediately. This
revival principle was first developed by the House of Lords in the case of Undy v. Undy1140 in
the mid-nineteenth century, when it was ruled that the domicile of origin should be revived
after the loss the domicile of choice. In the subsequent case of Tee v. Tee,1141 where a British
man acquired a domicile of choice in the United States, but later he lost it. The Court,
adhered to the revival rule developed in Undy v. Undy,1142 decided that his domicile of origin
revived automatically after losing his domicile of choice. Furthermore, the courts
acknowledged the revival principles in many other cases namely the Grant v Grant,1143
Ramsay v Liverpool Royal Infirmary,1144 Cyganik v Agulian,1145 Winans v AG,1146 and IRC v
Bullock.1147
Similarly, the domicile of origin of a dependent will be revived if he will not obtain a
new domicile after he will reach at the age of maturity. This principle was ruled in the case of
Harrison v Harrison,1148 where an eighteen-year-old English domiciled dependent went to
South Australia. After a year, he moved to New Zealand and married there. However, he
returned to England at the age of twenty-one. The conflict of laws raised when his wife began
a divorce petition in England. The court decided that the domicile of origin of dependent
revived as the person did not obtain new domicile after he reached at the age of maturity. It
is, therefore, evidently identified that the revival of domicile of origin fulfils the gap of lack
of domicile of a person until he obtains a domicile of choice. These benefits of revival can
never be obtained in any other types of domiciles in the conflict of laws.
6.1.2 Advantages of the Tenacity and Revival of Domicile of Origin in Conflict of Laws
The domicile of origin connects a person to his root place and society. It can be exercised in a
strange situation when a person has willingly abandoned the legal system of his origin place.
If the doctrine of the revival of the domicile of origin will not be applied, the person will be
in dilemma to remain in a jurisdiction. For instance, if a person leaved Malaysia to New
Zealand and intended that he would live there permanently. Few years later he moved to
England. Before obtaining a new domicile in England, all his legal matters would be judged
under the jurisdiction of Malaysia as his domicile of origin. This principle is applied in all
circumstances to always link a person to a jurisdiction.
The theory of revival of domicile of origin directs the court to examine the whole life of
a person in order to make a balanced and correct decision. Mummery LJ had suggested in the
1137 [1968] P 675.
1138 [1974] 2 All ER 520.
1139 McClean and Morris, The Conflict of Laws (1993): 14.
1140 (1869) LR 1 HL 441.
1141 [1999] 2 FLR 61.
1142 (1869) LR 1 HL 441.
1143 AC 37658.
1144 [1930] AC 588.
1145 [2006] 1 FCR 406.
1146 [1904] AC 289.
1147 [1976] 1 WLR 1178.
1148 [2009] All ER (D) 61.
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case of Cyganik v Agulian1149 that the domicile of the person is determined on the day of his
death. The entire life of the deceased shall be investigated to verify whether he was intended
to acquire a domicile of choice. Furthermore, the revival concept detects the private law of a
person to solve all his legal matters. It ensures the court that a domicile of origin is never
revoked or abandoned. This example can be found in the case of Bell v Kennedy1150 where the
domicile of origin was automatically revived when the domicile of choice of the person was
abandoned.1151 Additionally, the court ruled in the case of Harrison v Harrison1152 that the
domicile of dependency was revived after the expiry of the dependency period as no domicile
of choice was obtained.
6.1.3 Disadvantages of Tenacity and Revival of Domicile of Origin in the Conflict of Laws
In addition to the profound benefits of the tenacity and revival of domicile of origin, the
concept also has several drawbacks. In some situations, the revival concept is considered as
an unnecessary theory of law. Because a domicile of choice can be continued before
obtaining a new domicile. Sometimes the dependent and domicile of choice choose their
domicile adequately to judge their private matters. In England, the Law Commission Report
in 1987 indicated that the revival of domicile of origin is redundant as the country of birth
and the parents might decide about the domicile of the child.1153
The revival theory cannot be applicable to identify domicile of an illegitimate and a
posthumous child because the legitimacy of the child depends on the domicile while the
identification of domicile depends on legitimacy. In this complex situation, the domicile of a
person cannot be determined. The revival theory can also be an outdated one as people are
continuously moving from one place to another, but the doctrine links a person to a
jurisdiction which he leaved long before. Therefore, it might create a strange situation as the
person might know nothing about the judiciary of his country of domicile. For example, in
the case of Grant v Grant1154 where an English domicile of origin was followed generation to
generation as domicile of dependence. The problem is that even though a generation is not
going back to the origin still the domicile of origin needs to follow.
6.2 Domicile of Choice
A domicile of choice is acquired by a legally qualified person with the intention of residing
permanently in a particular state other than the state of his domicile of origin. This indicates
that the person willingly accepts a new legal system to follow indefinitely for the rest of his
life.1155 This domicile is declared as a question of fact but not law in the case of Mark v
Mark.1156 It involves both presence in a state and a bona fide desire to establish there a
permanent and indefinite home.1157 It indicates two tests must be coexisted in order to obtain
a domicile of choice—the objective test of dwelling factum and the subjective test of
intention animus. These two tests were firstly introduced by Snyder, J. in the case of White v
Tennant1158 and decided that “the succession and distribution of a decedent’s personal estate
is controlled by the law of the state where the decedent was domiciled at the time of death.”
Thus, a domicile of choice is a developing or an actual residence in a country with no
1149 [2006] 1 FCR 406.
1150 [1868] LR 1 Sc and Div 307.
1151 The Law Commission and The Scottish Law Commission: 5.
1152 [2009] All ER (D) 61.
1153 Law Teacher, “The Legal Concept of Domicile.”
1154 AC 37658.
1155 McClean and Morris, The Conflict of Laws (1993): 17.
1156 [2005] 2 FLR 1193.
1157 Cheshire North and Fawcett, The conflict of Laws, 14th ed. (Oxford. Oxford University Press, 2008): 143.
1158 (1888) 31 W Va. 790.
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intention of moving elsewhere.1159 A state can abandon this domicile at any time by operation
of law. It cannot be revived but can be renewed.
However, if a person leaves a country with the bona fide intention that he will come
back when necessary, his domicile will not be in that country even if he was living in that
country for a long time. Because obtaining domicile does not require a long stay in a country
but a short period is sufficient as long as having intention and residence. Lord Chelmsford
further ruled in the case of Bell v. Kennedy1160 that a person will acquire a domicile of choice
in a country if he has definite intention of permanent residence and intention to genuine
residence there. If a person is dwelling illegally in a state, he will not acquire domicile there
as it contradictory of the law of that state.1161 This principle was implemented in the case of
Puttick v Att-Gen1162 where a German criminal obtained an English passport by forgery and
the court, therefore, decided that he cannot obtain a domicile of choice by his illegal
dwelling.
The requirement of residence to obtain domicile of choice is defined as physical
presence in a state with the intention of dwelling permanently. For instance, Nourse J
illustrated in the case of IRC v Duchess of Portland1163 that “Residence in a country for the
purposes of the law of domicile is physical presence in that country as an inhabitant of it.”1164
An instant arrival with the intention to live permanently is sufficiently fulfilled the
requirement of residence for acquiring a domicile of choice. In the case of High Tech
International v Deripaska1165 where a Russian multi-millionaire owned several houses in
different parts of the world, but had two houses in England. He sometimes visited England
without any intention to live there permanently. Thus, the court rejected his domicile of
choice. In addition, to acquire domicile of choice by residence, the dwelling of a person must
not direct external purposes like relief from sickness, complete official duties, perform a
contract and so on.1166
The requirement of intention to obtain domicile of choice is the determination of living
“permanently or indefinitely” which was developed in the case of Mark v Mark.1167 The
intention of residing for a certain period for a particular purpose is not sufficient for
achieving a domicile of choice.1168 An intention to live permanently can be identified by the
evidence of intention and the nature of intention. Every incidence of the entire life a person
including whims, aspirations, health, prejudices, financial expectations, religion, and any
other reasons1169 can be relevantly administered to identify his state of mind which was also
ruled in case of Drevon v Drevon.1170 Naturalisation in a country is strong evidence to
identify the intention of a person living there permanently and indefinitely. For instance, in
IRC v Bullock1171 case where the court decided that as the person did not change his
nationally, his intention to obtain domicile of choice is absent. However, in the case of
Bheekhun v Williams,1172 the person was given a choice to receive Mauritius or British
1159 John Westlake, A Treatise on Private International Law: Or the Conflict of Laws, with Principal Reference
to Its Practice in the English and Other Cognate Systems of Jurisprudence (W. Maxwell, 1858): 34.
1160 (1868) LR 1 Sc & Div 307.
1161 Dicey and Morris, The Conflict of Laws, 9th ed. (London. Sweet and Maxwell, 1973): 96.
1162 [1980] Fam 1, [1981] QB 767.
1163 [1982] Ch 314, 318-319.
1164 Dicey and Morris, The Conflict of Laws (1993): 127.
1165 [2006] EWHC 3276.
1166 North, Cheshire, and Fawcett, The conflict of Laws (2008): 143.
1167 [2005] UKHL 42.
1168 Dicey and Morris, The Conflict of Laws (1993): 128.
1169 North, Cheshire, and Fawcett, The conflict of Laws (2008): 143.
1170 Drevon v Drevon [1864] 34 L J Ch 129, 133.
1171 [1976] 1 WLR 1178.
1172 [1999] 2 FLR 229.
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passport and he accepted a British which was sufficient to show his intention to accept
English domicile. Buying a real state property is also a major factor to identify intention to
live permanently.1173 If a person makes a clear and foreseen contingency to move from a
state, he will not get domicile of that country. This principle was explained in the case of IRC
v Bullock1174 where a man made a contingency that if his wife predeceased him, he would
return to the country of his birth. The Court of Appeal rejected his domicile of choice and
stated that domicile of origin of the man is still sustained as he had intention to return if his
wife predeceased him. The court also indicated that he had in mind a definite, not a vague,
contingency. There was a ‘sufficiently substantial possibility of the contingency happening.’
Scarman J. further explained about a contingency in the case of Re Fuld’s Estate (No 3)1175
that;
If a man intends to return to the land of his birth upon a clearly foreseen and reasonably
anticipated contingency, eg, the end of his job, the intention required by law is lacking; but if
he has in mind only a vague possibility, such as making a fortune (for example, winning a
lottery), or some sentiment about dying in the land of his father, such a state of mind is
consistent with the intention required by law.
However, contingency is vague and unclear one, the domicile of choice of a person will
be survived. For instance, in the case of Lawrence v Lawrence1176 where a person loved to
live in Brazil but contingency to leave it. The contingency was that “if there were to be a
revolution and things got badly out of hand.” Thus, the court decided that the domicile of the
person is in Brazil as the contingency is very vague and unclear in nature.
6.3 Domicile of Dependent Persons in the Conflict of Laws
The domicile of dependency follows a domicile of another person by operation of law.1177
When the domicile of the principle is surrendered, the domicile of the dependent is also
automatically surrendered. A wife and children acquire the domicile of her husband and
parents subsequently in common law. Thus, the children obtain two domiciles at their birth
namely the domicile of origin and dependency. However, a child can obtain a new domicile
of choice when he reaches at the age of maturity. If his domicile of choice is abandoned, his
domicile of origin will be revived automatically. This type of domicile is divided into two
categories as follows.
6.3.1 Domicile of Children
It is universally accepted rule that the domicile of parents is the domicile of a child who is
under the age of maturity. After reaching at age of maturity, the child can obtain a new
domicile of his choice. However, the age of maturity is differed from country to country. In
England, the age of maturity is 16 years under the Domicile and Matrimonial Proceedings
Act 1973, but most of other countries confirmed 18 to 21 years.1178 According to Dicey and
Morris, a legitimate child generally get the domicile of his father, and an illegitimate child
who later becomes legitimate gets the domicile of father too, but his domicile of origin is
inherited from his mother. If the child is born after the death of his father or the child is
illegitimate, his domicile is the domicile of his mother. In special situation, mother can
change the domicile of her child in the best interest of the child as ruled in the case of Re
1173 Re Flynn [1968] 1 WLR 103.
1174 [1976] 1 WLR 1178.
1175 [1968] P 675.
1176 (1985) FLR 1097.
1177 North, Peter, Private International Law Problems in Common Law Jurisdiction (1993): 6.
1178 North, Peter, Private International Law Problems in Common Law Jurisdiction (1993): 6
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The Doctrine of Domicile in Conflict of Laws: A Critical Analysis
Beaumont.1179 Moreover, an adopted child’s domicile is the domicile of either both or one of
the adopted parents and a founding child’s domicile is at the place where he was found.1180
In England, section 4 of the Domicile and Matrimonial Proceedings Act 1973 provides
three exceptions which apply only to legitimate and legitimated children whose mother
passed away or whose parents separated. Firstly, if the child is living with mother and father
does not have home, the domicile of the mother will be recognised. Secondly, the child may
petition at any moment to shift his domicile to his mother if the father does not have a home.
And thirdly, if the child lived with his mother and the father does not have home, the
domicile of the mother will continue after the death of the mother.1181
6.3.2 Domicile of Married Woman
Married women usually obtain the domicile of her husband. In England, this general principle
is abolished by the enforcement of the Domicile and Matrimonial Proceedings Act 1974.
According to this Act, married women including divorcees and widows can obtain their
domicile of choice autonomously. The principle of domicile of married women was enforced
in the case of Re Scullard1182 where an English domiciled woman went to Guernsey after
divorce and dwelling there permanently. Based on this fact, the court ruled that the woman
can obtain domicile of choice after the death of the husband. The current practice is the
married woman get the domicile of her husband unless they voluntarily obtain a domicile of
choice.1183 If a widow marries second time, she will achieve domicile of her new husband if
she does not choose a domicile of choice.1184
VII. DOMICILE FOR DIFFERENT CATEGORIES OF PEOPLE IN CONFLICT OF
LAWS
7.1 Persons Liable to Deportation
Deportation is an option for those whose residence is unstable.1185 The person lost his
capacity to live in a state though he has proper intention to stay there. This situation forces
him to obtain a new domicile. However, the domicile of the person will remain intake until he
is deported. This principle was enforced in the case of Cruh v Cruh,1186 where a deportation
order made against a German origin man domiciled for conspiracy. Lord Denning J. ruled
that the person will remain in his current domicile until the factual deportation is done.
7.2 Prisoners
The prisoners are same as the free people in the context of domicile.1187 They can continue
their domicile in jail and can also obtain a domicile of choice if they want to live permanently
in a place.1188 The prison authority does not have any power to change the domicile of the
prisoners, but they can achieve by their free choice.1189
1179 [1893] 3 Ch 490.
1180 Dicey, Albert Venn, The conflict of laws (1994-1993): 124.
1181 LEX 47, “Conflict of laws: Domicile under International Law.”
1182 [1957] Ch107
1183 Keyes, Mary, “Jurisdiction in International Family Litigation: A Critical Analysis,” (2004): 56-57.
1184 US Legal, “Domicile by Operation of Law,” https://domicile.uslegal.com/types-of-domicile/domicile-by-
operation-of-law/ (accessed July 19, 2022).
1185 Dicey and Morris, The Conflict of Laws (1993): 139.
1186 (1945) All ER 545.
1187 John O’Brien, Conflict of Laws, 2nd Ed. (Cavendish Publishing Limited, London, 1999): 75.
1188 Dunston v Paterson (1858) 5 C.B. (N.S) 267.
1189 Dicey and Morris, The Conflict of Laws (1993): 139.
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7.3 Refugees and Fugitives
Refugees and fugitives can obtain a domicile of choice in a country if they want to stay there
permanently and indefinitely.1190 The political refugees can also acquire this new domicile if
they have no plans to return to their own countries.1191 If they have intention to return when
the situation will be in their favour, they will remain in their domicile of origin.1192 For
instance, in the case of Re Martin1193 where a France professor fled from France to England
to save him from French law with the intention that he will stay there permanently. The court
decided he has obtained a new domicile in England with the intention to live there for his
remaining life. Similarly, in Moynihan v Moynihan (Nos 1 and 2)1194 case, a British domicile
of origin came to Philippines to avoid arrest. He developed business and married there and
blessed with children. The court decided that the person obtained domicile of choice in
Philippines. However, in the case of Re Benko,1195 a Hungarian domicile left his country and
was living in Australia. The evidence of his entire life indicate that he did not achieve any
domicile of choice though he was living long time out of his country. The court decided that
his domicile of origin is remained.
7.4 Living in a State for Specific Purposes
If a person lives in a state for better health and other special purposes, he will not obtain a
domicile of choice there because he is living there for special motive and does not show his
freely choice. In the Hoskins v Matthews1196 case, the person was living in England for better
health with the intention to live there permanently. The court accepted his domicile of choice
based on his free choice to live there permanently.1197 Similarly, the armed personnel can
obtain new domicile with their free intention to live in a country permanently.1198 This
principle was enforced in the cases namely Baker v Baker1199 and Donaldson v Donaldson1200
where the courts decided that the armed forces can get a domicile of choice with their free
choice.1201 The same principle can be found in the case of Baker v Baker.1202 This same
principle is also applicable on the students who study aboard. This rule was established in the
case of AG v Rowe.1203 However, a mentally disabled person is disqualified to acquire a
domicile of choice.1204 His domicile will be identified when he has in good health or his
domicile of origin.
Domicile of diplomats is same as other independent people. They are qualified to
obtain domicile of choice with their free choice to live permanently in a particular
country.1205 In normal situation, they don’t express their intention to stay in a state
permanently. This can be seen in the South African case of Naville v Naville1206 where the
1190 O’Brien, John, Conflict of Laws (1999): 75.
1191 Marco Raiteri, “Citizenship as a connecting factor in private international law for family matters,” Journal
of private international law 10, no. 2 (2014): 328-29.
1192 Dicey and Morris, The Conflict of Laws (1993): 140.
1193 [1900] P211.
1194 [1997] 1 FLR 59.
1195 [1968] SASR 243.
1196 [1855] 8 De GM & G 13.
1197 Dicey and Morris, The Conflict of Laws (1993): 140.
1198 Dicey and Morris, The Conflict of Laws (1993): 141.
1199 [2008] EWHC 977 (Ch).
1200 [1949] P 363.
1201 Dicey and Morris, The Conflict of Laws (1993): 141.
1202 [2008] EWHC 977 (Ch).
1203 (1862) 1 H & C 31.
1204 McClean and Morris, The Conflict of Laws (1993): 29.
1205 Dicey and Morris, The Conflict of Laws (1993): 143.
1206 [1957] (1) SA 280.
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The Doctrine of Domicile in Conflict of Laws: A Critical Analysis
Court ruled that a foreign diplomat can obtain a domicile of choice with his intention to live
permanently in South Africa when continuing his service.
VIII. STRENGTHS AND CHALLENGES OF DOMICILE IN THE CONFLICT OF
LAWS
Domicile connects a person into a judiciary. This concept ensures that nobody is free from a
domicile in a particular time. I. this modern era, people are moving around the world.
Whereover the person goes, his domicile of origin follows him unless he obtains a new
domicile with his free intention to live permanently in a different country of his origin. This
theory provides a unique system to ensure that a person is bound by a legal system and his
properties will be distributed with that judicial system.1207
In some cases, however, people are living for a long time in different states other than
the states of their origin. They complete all their dealings according to local norms where
they live. When they face legal problems, their legal issues will be judged based on the
jurisdiction of their origin even though they have not visited there for a long time. Thus, it
creates ambiguity in the legal system. Some legal jurists claimed that it is a backdated
concept which cannot be applicable in this modern world.1208
IX. CONCLUSION
Domicile is one of the most important theories in the conflict of laws to connect a person to a
judiciary system. This theory examines the uniqueness of dwelling of a person and confirms a
domicile in an aspect that nobody is free from a domicile.1209 It governs rights and obligations
including the marriage, succession, matrimonial property, and other contracts of a person
under a legal system. It attaches a person to a place where he wants to live permanently and
binds him to follow the law of the place.1210 Therefore, it plays an important role in the law of
taxation.1211
Every child has a domicile by birth whether he is legitimate or illegitimate child who
later becomes legitimate. A founding person has also a domicile of the place where he is
found. An adopted child also obtains domicile of his either both or one of the parents. This
domicile can be either domicile of origin which is automatically obtained by birth or domicile
of choice which is acquired by free choice of a person. However, if a person is abandoned
from domicile of choice, his domicile of origin will be revived. It is evidently indicated that
no person is free from a domicile, thus, every legal act of a person is bound by a judiciary. To
sum up, the personal movable property is disposed of in accordance with the jurisdiction of
the domicile of the person, and real property means immovable property is disposed based on
the law of the situs. Civil law jurisdictions, however, account the nationality of the person in
deciding which law to be applied.1212
1207 Udny v. Udny (1869) LR 1 HL 441.
1208 O’Brien, John, Conflict of Laws (1999): 41.
1209 McClean and Morris, The Conflict of Laws (1993): 12.
1210 Davrados, Nikolaos A., “Nationality, domicile, and private international law revisited,” (2017): 127-28.
1211 Abdrakhmanova, Elmira Serikkeldinovna, and Lyazzat Begimjanovna Nyssanbekova, “Treatment of
Domicile Concept in International Private Law,” (2013): 1691.
1212 Lawrence III, Robert C., and Elisa Shevlin Rizzo, “Basic Conflict of Laws Principles,” (2000): 4.
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22 October 2022
E-ISBN 978-967-491-267-3
p. 301-310
23. PROTECTION AND ADOPTION OF
ORPHAN UNDER THAI CHILD PROTECTION
ACT 2003: WITH REFERENCE TO THE
MALAY MUSLIMS IN THE DEEP SOUTH OF
THAILAND
Dr Sulaiman Dorloh
Assistant Professor, Faculty of Shariah & Law, Sultan Sharif Ali Islamic University,
Negara Brunei Durussalam
E-mail: [email protected]
Seeni Mohamed Nafees
Assistant Professor, Faculty of Shariah & Law, Sultan Sharif Ali Islamic University,
Negara Brunei Darussalam
Email: [email protected]
Yusuf Sani Abubakar
Lecturer, Faculty of Shariah & Law, Sultan Sharif Ali Islamic University,
Negara Brunei Darussalam
Email: [email protected]
ABSTRACT
Thailand is a democratic and Buddhist country with the king as Head of the State.
There are many provisions in the revised Constitution of the Kingdom of
Thailand, 1997(CKT,1997) and CKT, 2007 that provide the principles of
democracy such as the protection of the interests of a child. By virtue of
CKT,1997, the Thai Child Protection Act, 2003 (TCPA 2003) was promulgated
and was subsequently enforced on 24 September 2003. The objectives of the
study are to investigate the provisions of TCPA, 2003 concerning the children’s
rights and orphans’ right of living in orphanage centres and the current scenario
on the status of the children at risk in Thailand. This is because the children in the
southern region of Thailand are subjected to ongoing unrest. The data illustrated
the presence of a high level of victims among the children aged 6 to 10 years old,
about 4,304.00 children are orphans. Since the Act of 2003 is new, it faces many
challenges and obstacles, the challenges facing the Royal Thai Government in
relation to the issue of adoption and nationality for orphans and the conditions of
living in the orphanage centres in the southern region. The historical background
and modern development of child protection laws in Thailand and the protection
and care of orphans under TCPA, 2003 are also discussed. It is suggested that
article 7 of TCPA, 2003 concerning child protection committee members need to
be revised, and Children Protection Committee members may involve elected
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representatives from the central Muslim religious council and Muslim magistrates
from the four southern border provinces of Thailand. The study also suggested
that the government, civil society, and communities need to complement each
other and work towards creating a protective environment for children and
orphans. Also, support systems must ensure the fulfilment of basic needs of the
families of widows and orphans without any discrimination.
Keywords: Thai Child Protection Act 2003, adoption, orphan, children, southern
region.
I. INTRODUCTION
Knowing that there occurs violence in the southern region which causes the loss of life, the
children, orphan and widows are also among the victims of the unrest. The turmoil is creating
loss of lives and causing significant damage to both private and public properties.1213 Many
children became orphans overnight due to the trail of murders and killings. According to the
government statistics, Pattani has seen the highest number of orphaned children -1,691;
followed by Narathiwat with 1,586 and Yala with 1,027. The unrest in Songkhla has been
responsible for 150 orphans, widowed up to 2,295 women over the past eight years (Expat
Forum,2011). This is because, the southern region has a population of 9 million, 6 % of the
national population are Muslims. They are the second largest minority next to the
Chinese.1214 There are 5 provinces of which three have borders with Malaysia. The survey
data indicate that Pattani Population, as of 31 December 2001, is about 635,730.00 persons,
female population is up to 330,665.00 whereas males population is about 305,065.00 persons.
And the total of the Narathiwat population is about 707,171.00 persons and 468,252.00
persons for Yala province.1215
Table 1: Numbers of Children Victims affected by ongoing unrest in Pattani province:
Age Total
0 – 5 years 80 persons
6 – 10 years 135 persons
11 – 15 years 127 persons
16 – 25 years 201 persons
26 – 35 years 96 persons
40 persons
> 36 years
Source: Asian Social Science, Vol.5, No.9/ September, 2009
As shown in table 1, the greatest proportion (135) of the victims in Pattani province is
among children aged six years old to ten years old. A second larger proportion (127) of the
victims aged eleven years old to fifteen years old. According to the Ministry of Education, at
least 30 school students were killed and 92 injured due to violence in the affected provinces
1213 Annual Report, a Center for the Coordination of Assistance to Persons Affected by the Unrest in the Deep
South. 2011.
1214 Aphornsuvan, Thanet. History and Politics of the Muslims in Thailand, Bangkok: Thammasat University,
p.2.
1215 Melvin, Neil J. Conflict in Southern Thailand: Islamism, Violence and the State in the Patani Insurgency,
(Sweden: CM Gruppen, Bromma. p.vi, 2007).
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Protection and Adoption of Orphan Under Thai Child Protection Act 2003: With Reference to the Malay Muslims in the
Deep South of Thailand
between January 2004 and December 2007.1216 Just like many child laws in other countries,
the future of child protection in Thailand is very much depended on the governmental
organisations. Support from institution such as Islamic organisations, mosques and Islamic
centers are vital especially at the growth stage. Currently, there are about 6 private run
orphanage care centers with approximately 800 orphans operating in the four southern border
provinces, only Narathiwat province has two centres.
These private run orphanage centres should apply for license from the Director-General
before operation.1217 If a centre which has been granted license under section 7 violates the
conditions stipulated in the license or performs an act detrimental to the peace and order or
good moral of the public or to the welfare of a child, the Director-General is authorised to
revoke its license, and the provisions of paragraph one shall apply muatatis mutadis1218 In
Pattani or Patani,1219 the Southern Orphanage Centre estimates 90% of orphan are Muslims.
The Provincial Orphanage Centre of Narathiwat or Bangnara,1220 Yala, Pattani, and Songkhla
have successfully collaborated with the four northern states in Malaysia. The success of this
cross-border collaboration is attributed to having Islamic value in common.
Figure 1: Map of Southern Thailand
A significant number of children who have lost parents due to causes other than those
related to the ongoing conflict in Pattani, Yala and Narathiwat. Although the state claims to
1216 Keenapan, N. Everyday Fears: Children’s Problem of Living in the Southern Border Area of Thailand.
Retrieved December 2011, from http:///www.unicef.org/info country/Thailand.
1217 Section 7, TCPA,1979.
1218 Section 8, TCPA, 1979.
1219 Che Man, W.K. Muslims Separatism: The Moros of Southern Philippines and the Malay of Southern
Thailand, (New York: Oxford University Press, 1990), 45.
1220 Che Man,W.K.,1999, p.60.
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provide for some such “orphans,” the magnitude of the problem is so immense that only a
small proportion of these children gain any substantial or meaningful state support to carry on
with their lives.
According to Mr. Wsin Samoh, the Deputy Director of Dar al-Aytam wa al-Masakin li
al-Banat Sungai Pandang, Pattani province, 9 Kilometers southeast of Pattani city, said most
center attendance are local people. The situation in the centre is crowded. Presently, there are
approximately 203 orphan resident in the orphanage, who are all Muslims.1221 The children
range from the very young to the late teens. The younger children have special wardens who
ensure that each child is looked after, given due attention and cared for from a young age.
This gives the child the opportunity to develop in a secure environment. Healthy environment
is of necessary. Most of them have had little or no formal education. Some of them are
enrolled in local religious private schools -- just to mention a few, for example- Amanasak
school, Pattani province, Ma’had al-Tarqiyyah al-Islamiyyah , Narathiwat province. Their
school fees are waived off1222 and they are provided free boarding and lodging in the
orphanage. At Dar al-Barakah school, known as “Pannya Lert Orphanage Foundation”,
located at Ban Bana of Pattani's Muang district, Pattani provice are currently accupied with
more than 100 children.
Narathiwat Abu Hurayrah Dar al-Aytam located at Phijit Bamrong road whereas Nida
Al-Khair is located at Jakan village, 10 Kilometers southeast of Narathiwat Municipality,
Narathiwat province, are also private- run orphanage center. These centres are more familiar
with “rumah anak yatim” than with orphanage centre. This orphanage center was funded
jointly by Ihya al-Turath al-Islami and local Muslim community. Presently, there are
approximately 400 orphan resident in the orphanage. The children range from the very young
to the late teens. The younger children have special wardens who ensure that each child is
looked after, given due attention and care for from a young age. This gives the child the
opportunity to develop in a secure environment.1223
Some private orphanage centers are run by NGOs or other private charities (both
religious and secular). Examples of this type include the Thai Red Cross Children Home and
the Friends for All Children orphanage (both in Bangkok), Pattaya Orphanage in Chonburi,
and the Agape Home in Chiang Mai. Some foster care programs exist, where children live
with foster families until adoptive placement. Examples include the program (focused
primarily on adoption of young/healthy children), and foster care for some children who are
in the care of the “Friends for All Children Foundation”, particularly in the Chiang Mai area.
Thus, it seems appropriate to study the relevant laws and regulations must be studied
carefully to find ways and solutions to the current problems affecting victims especially the
children and orphans in those areas.
II. CHILDREN’S RIGHTS IN THAILAND UNDER THAI CONSTITUTION AND
OTHER RELEVANT LAWS
Rights which are recognised by Thai constitution include rights which have never mentioned
by previous constitution, some of them are the right of the children and the youth to be
protected from violence and unfair practice and right to receive are and education from the
state if they have no guardians and child’s right to health services and care.1224 By virtue of
section 50 CKT, 2007, the Eighth Five-year National Health Development Plan (1997-2001)
1221 Zuraida, Fatimah and Wea Song. (B.E.2543). Academic Report, Pattani: College of Islamic Studies, Prince
of Songkhla University.p.2.
1222 Article 48(2) of CKT, 2007.
1223 Muhammad Radhi Dera-i, orphanage warden, Interview.
1224 Section 50, Child Protection Committee 2007 (CKT,2007).
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was formulated under the Ministry of Public Health (MOPH), the government agency
responsible for national health development planning.
The plan emphasises decentralised health management and greater collaboration
between the public and private sectors. Public participation and community involvement in
all decision-making processes are sought, based on the determination of local administrative
bodies.1225 One of the mechanisms of the protection is through appointment of the permanent
committee members. This committee is appointed since the introduction of the TCPA, 2003.
By virtue of CKT,1997 it provides, inter alia that: “The state must provide health services
and care for every person as a constitutional right. This includes children and other
vulnerable groups. In order to protect the interests of a child, a child protection committee
was set up”.1226
The committee consists of the Ministry of Social Development and Human Security as
a chairperson, the permanent secretary to the Ministry of Social Development and Human
Security as a vice-chairperson. The members of Child Protection Committee comprise of the
Permanent Secretary to the Ministry of Interior, the Permanent Secretary to the Ministry of
Justice, the Permanent Secretary to the Ministry of Education, the Attorney General, the
Chief of the Royal Thai Police, the Director-General of the Department of Provincial
Administration, the Director-General of the Department of Mental Health, the Chief Judge of
the Central Juvenile and Family Court, and the Director of the Office of Welfare Promotion
and Protection and Empowerment of Vulnerable Groups and the distinguished members
appointed by the Minister from experts who have seven years professional experiences in the
fields of social welfare, education, psychology, law and medicine. The Child Protection
Committee (CPC) consists of the Minister of Social Development and Human Security as the
Chairperson, and a permanent secretary to the Ministry of Social Development and Human
Security as the Vice-Chairperson. The committee members are as follows:
(1) Permanent Secretary to the Ministry of Interior,
(2) Permanent Secretary to the Ministry of Justice,
(3) Permanent Secretary to the Ministry of Education,
(4) Attorney General,
(5) Chief of the Royal Thai Police,
(6) Director-General of the Department of Provincial Administration,
(7) Director-General of the Department of Mental Health,
(8) Chief Judge of the Central Juvenile and Family Court,
(9) Director of the Office of Welfare Promotion and Protection and Empowerment of
Vulnerable Groups, and
(10) Distinguished members appointed by the Minister from experts who have seven
years professional experiences in the fields of social welfare, education,
psychology, law and medicine.1227
The purpose of protection under this Act, the appointed committees are obliged to
advise the Minister on all aspects of child protection. A secretariat of the committee shall
have the following duties:
(1) To perform administrative tasks1228
(2) To coordinate and cooperate with the other government agencies, and public and
private organisations1229
1225 Economic and social Commission for Asia and the Pacific,2000, p.58.
1226 Section 82, Child Protection Committee 1997 (CKT 1997).
1227 Article 7, Thai Child Protection Act 2003(TCPA 2003).
1228 Article 8 (1), Thai Child Protection Act 2003 (TCPA, 2003).
1229 Article 8(2), Thai Child Protection Act 2003(TCPA, 2003).
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(3) To develop system, modules, procedures, and to provide services in connection
with child welfare, safety protection and behavioral promotion, and1230
(4) To compile research results, and analysis in connection with the monitoring, and
evaluating of the implementation of policies and plans for the provision of
welfare, safety protection and behavioral promotion of children.1231
The mission of the plan states that all Thai citizens, regardless of sex, age, occupation,
religion, locality, race, education and economic status should have the following:
(1) Be born and grow up in a well-prepared and warm family environment,
(2) Be adequately developed physically, and intellectually to be capable of adjusting
to a rapidly changing world, and to be able to make rational consumer decisions,
maintain good health behaviour and live happily, with peace of mind,
(3) Have health security, and access to appropriate health care services, which are
rational, accessible, of good quality, equitably distributed, and provided at a
reasonable cost,
(4) Live in a well-organised community where resources are pooled and
responsibilities are shared, particularly the health care of individuals, family and
communities, with an emphasis on children, the elderly, the underprivileged and
the handicapped,
(5) Maintain good and safe living and working conditions, and
(6) Live a long, good quality life, free of preventable illnesses, and dying
(7) with dignity.1232
The committee members listed above is not representing the Muslim population.
However, data illustrated above shown that Muslim children are the victims of the regional
unrest. Moreover, Thailand is a multi-religious country and Islam is the second largest
religion with over six million followers. Majority of them reside in the southern provinces of
the country which is located at the Malaysian border. Therefore, special consideration must
be given to the Muslims in the south to be appointed as a committee member of CPC.
III. CHILD PROTECTION LAW IN THAILAND: HISTORICAL BACKGROUND
AND MODERN DEVELOPMENT
The history of child protection laws started with the introduction Thai Child Protection
Act,1979 (TCPA, 1979) and TCPA, 2003. As for TCPA, 2003 it was enacted by King
Bhumibol Adulyadej on 24 September 2003. This Act stipulated that inter alia, all provisions
relating to the restriction of rights and liberties of individuals which contains in sections 29,
31, 34, 35, 36, 39, 48 and also section 50 of the CKT, 2007 are reaffirmed by this Act.1233
This Act shall be called as the “Child Protection Act of 2003”.1234 The rationale for the
promulgating of this Act is to provide detail governing the procedures and measures for
providing welfare assistance, protecting safety and promoting behavior of child which
previously are not suited to the present social conditions. Thai government under the
leadership of Pol. Lt. Col. Thaksin Shinawatra deemed appropriate to define procedures and
amended methods in dealing with the child to enable them to be taken care of by appropriate
organisations and institutions which in turn will promote the stability of the family institution
and prevent the child from being abused or discriminated.
It is also deemed expedient to improve the ways and means to foster collaboration
amongst the government agencies and private organisations in providing protection to the
1230 Article 8(3),Thai Child Protection Act 2003 (TCPA, 2003).
1231 Article 8(4), Thai Child Protection Act 2003(TCPA, 2003).
1232 Economic and social Commission for Asia and the Pacific, 2000, p.59.
1233 Preamble, Thai Child Protection Act (TCPA, 2003).
1234 Article 1, Thai Child Protection Act (TCPA ,2003).
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child so as it will be in line with the present constitution.1235 As party to the Convention on
the Rights of the Child, Thailand fully adheres to basic rights and principles for the best
interests of the child. The National Economic and Social Development Plan have given
priority to human development, including child protection and participation. Indicators such
as Social Indicators (Basic Minimum Needs), Indicators on Child and Youth Development
and Indicators on Child’s Rights are introduced as guidelines for the effective protection of
children’s right.1236
IV. CONTENTS OF THE TCPA 2003
The TCPA, 2003 comprises 88 articles arranged in introduction and eight chapters. TCPA,
2003 discusses on several aspects, which includes the right to live, survive, protect, and
participate in children development. The first chapter is concerning with child protection
committee.1237 The second chapter generally discusses about the treatment of the child.1238
The third chapter talks about social welfare and fourth chapter is discussing about safety
protection.1239 In this chapter, it further divides into five titles viz., abused children, neglected
children, paralysed children, illegal children, children who are living in a poor family and
children out of wedlock. Fifth chapter discusses about child’s safety protectors.1240 Sixth
chapter is about nursery, gatehouse, welfare center, safety protection centre and development
and rehabilitation centre.1241 This chapter divides into four titles. First chapter deals with
legal issue, tribal and minority issue of the children and the third title deals with child
exploitation and the last title is about the children who are in vulnerable condition. In this
chapter, it found that special attention is provided in the TCPA, 2003. It deals with Muslim
Child in the southern five provinces Thailand. It includes Narathiwat, Pattani, Satul, Yala and
Songkhla province. Seventh chapter discusses about behavior promotion of pupils and
students.1242 Eighth chapter discusses about child protection fund and last chapter discusses
about penalties.1243
According to the TCPA, 2003, the term Child means “a person below 18 years of age.”
1244 it does not include those who have attained majority through marriage. On the contrary,
there are several definitions given in Thai law currently in force in the country. In the Royal
decree for the establishment of Child and Family Court B.E. 2534 defines child as a person
below 7 years of age but not above than 18 years of age. The Royal Decree for the Promotion
of Child B.E. 2521 defines child as “a person below 25 years”. A quite similar definition is
given in the Thai Dictionary B.E. 2525 where child is defined as a person below 14 years of
age. The age of criminal responsibility is not more than 7 years.1245
Analysing the definition of child as stated in the Thai laws, it is observed that the Thai
laws are inconsistent in determining the minimum age for a child. This is because each of
Thai law has different purpose in term of its application. The question may arise as to what
law is applicable. Therefore, it is suggested that a standardised the minimum age of child
should be adopted. This would eliminate any doubt as to child minimum age. In relation to
1235 Article 87, CKT,1997.
1236 Ministry of Foreign Affairs,2004, Thailand, p,34.
1237 Starting from article 7 to article 21.
1238 From article 22 to article 31.
1239 From article 32 to article 39.
1240 Article 40 to article 47.
1241 From article 48 to article 50.
1242 From article 63 to article 67.
1243 From article 78 to article 86.
1244 Article 1 of the Convention on the Rights of the Child.
1245 Section 73 Thai Criminal Code, 1956.
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minimum age of child, it is necessary to follow the TCPA, 2003. This will prevent
maltreatment towards a child.
V. PROTECTION OF CHILDREN UNDER THE TCPA 2003
It is provided in the TCPA 2003 that the guardians of a child are forbidden to abandon a child
at a nursery or health care facility or with a person employed to look after the child or at the
public place or any other place with intention of not taking him or her back.1246 Several
articles relevant to the protection of abandoned children were mentioned in this Act. Before
the introduction of the Act 2003. It was governed by Thai Criminal Code,1956.1247 Sections
306,307 and section 308 stating inter alia that it becomes a duty for the parent take care the
children who are below eighteen years. The state takes initiative to help them by taking care
of them.1248This includes a person who is over 60 years of age and has insufficient incomes
shall have the right to receive aid from the state.1249
A study conducted by sub-committee on child’s right revealed that one of the most
important preventive measures in child abandonment is to stop the pregnant out of wedlock
and pregnant during the schooling. However, steps have been taken by the Department of
Social Development and Welfare to encourage the public to lodge a police report of child
abandonment by setting up telephone lines. This department also provides welfare services to
needy and distressed people, including trafficked woman and children throughout the
country. The welfare services offered are remedial, preventive, curative and developmental in
nature.
Those services were (1) to provide assistance and welfare to the child and his or her
family or any person providing care for the child so as to enable them to take care of the child
in a manner pursuant to article 23.1250 (2) To submit the child into the care of an appropriate
person who consents to provide care for the child for a period as deemed appropriate but not
exceeding one month in the case where it is not possible to act according to clause 1.1251 (3)
To facilitate the adoption of the child by accordance with the law on child adoption (4) to
send the child to be cared for by an appropriate foster family.1252 To send the child to be
cared for at a gatehouse.1253 and (6) To send the child to be cared for at a welfare centre.1254
The following children are warranting for welfare assistance under TCPA,2003 namely:
(1) Street children,
(2) Abandoned or lost children,
(3) Children whose guardian are unable to take care of, for example his or her being
imprisonment, detained, disabled, and chronically ill,
(4) Disabled children,
(5) Children in difficult circumstances, and
(6) Children in situations warranting welfare assistance as stipulated in the
ministerial regulations.
From the provisions mentioned above, it is also observed that there is no single
provision in the TCPA,2003 discusses specifically about the orphan children and their
welfare. The TCPA,2003 may create negative implications in the sense that that it may leave
1246 Article 25(1) TCPA, 2003.
1247 Thai Criminal Code, 1956 (TCC 1956).
1248 Constitution of the Kingdom of Thailand, 2007, Article 51(2).
1249 Constitution of the Kingdom of Thailand, 2007, Article 52.
1250 Thai Child Protection Act, 2003, Article 33(1).
1251 Thai Child Protection Act, 2003, Article 33(2).
1252 Thai Child Protection Act, 2003, Article 33(4).
1253 Thai Child Protection Act, 2003, Article 4.
1254 Thai Child Protection Act, 2003, Article 33(5).
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some important aspects of the Act. Because of this weakness, the contents of the TCPA,2003
is subjected to review.
VI. ADOPTION AND ELIGIBILITY FOR ADOPTION UNDER THE THAI CHILD
ADOPTION ACT 1979
His Majesty King Bhumibol Adulyadej has been graciously pleased to proclaim that it is
expedient to have a law relating to child adoption. This Act shall be called the " Child
Adoption Act B.E. 2522 (1979)”. The Board shall have the following powers and duties:
(1) To issue regulations, rules and procedures relating to adoption of children to be
observed by the Adoption Center, the licensed Child Welfare Organisations and
other agencies concerned,
(2) To consider and give decision to adoptions of children,
(3) To resolve problems concerning adoption of children,
(4) To give consultations concerning adoption of children to the Adoption Center, the
licensed Child Welfare Organisations and other agencies concerned.1255
Most Thai children waiting for adoption live in orphanages. Many of these are
government-run, such as the large Pakkred, Bangkok area and Viengping, Chiang Mai area
babies’ homes and many other babies' and children's homes throughout the nation.
According to TCAA,1979 it was provided that “No person shall take or send any child out of
the kingdom for the purpose of arranging its adoption, directly or indirectly, unless with a
permit from the Minister in accordance with the principles, procedures and conditions
stipulated in Ministerial Regulations”.1256 The Child Adoption Board of Thailand (which
includes key officials of the Thai Department of Social Development and Welfare(DSDW)
must sign off on all adoptions of Thai children, including adoptions of children in care of the
DSDW, children in care of designated NGOs, and children who are relatives or acquaintances
of the prospective adoptive family. If birthparent(s) are known, children must have been
legally relinquished under Thai law. If the child has been abandoned, Thai officials make an
effort to find genetic family before allowing the child to be adopted.
The slow speed of the investigational and signoff process is one main reason that infant
adoption is virtually non-existent in Thailand, and even the youngest available children are
usually 1 to 2 years old. Many children in Thai orphanages have one or both parents still
living; parents may be impoverished, imprisoned, or otherwise unable to care for a child, but
may never have signed relinquishment papers. Therefore, though thousands of children live
in Thai orphanages, a high percentage of them are not eligible for adoption, either
domestically or internationally.
As for family requirements, Thai law does not stipulate a long list of family
requirements. Adoptive families must be legally qualified to adopt in their home
states/countries. Married couples must consist of a man and woman who are both at least 25
years old. Single women (not men) can petition to adopt special-needs children only;
however, the Thais' definition of "special needs" remains somewhat unclear. (For instance, it
is not clear whether the definition automatically includes waiting children who are basically
healthy, but older. Consult your agency for the latest details. The upper age limit for parents
is not codified by Thai law. Rules will vary depending on where your agency is going to
submit your dossier (to DSDW or an NGO). NGOs and adoption agencies can both impose
their own rules (beyond Thai federal law) defining what parent ages are considered "too
young" or "too old." It is important to specify the age that you want and discuss it with your
agency. All adoptions in Thailand must be processed through the Child Adoption Center of
1255 Section 14, TCAA,1979.
1256 Section 18, TCAA, 1979.
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the Department of Public Welfare (DPW), which is the sole governmental social welfare
agency responsible for adoption of Thai children. Four non-governmental organisations
(NGOs) are licensed to deal with DPW's Child Adoption Center in cases where a child is to
be placed abroad, but only three of these NGOs process cases for prospective adoptive
parents who reside in the United States.
In general, parents in their late 20s and in their 30s will encounter no difficulty
regarding their ages and should be eligible to adopt both young and older children. (However,
a minimum 15-year age gap between the younger parent and the child is required by Thai
law.) Parents in their early 40s may be asked to adopt a somewhat older child (older toddler
or preschooler). Parents in their late 40s may be qualified to adopt school-aged children or
(possibly) younger children with special needs. Couples where both parents are over 50 are
much less likely to be allowed to adopt. It is very important to discuss your individual
situation with each agency you are considering. The following should be taken as generalities
based on agency experience and observed patterns of practice, rather than hard and fast rules.
For instance, small families are generally preferred (two existing children or fewer), but this
preference may be waived, particularly for waiting children. Some families with a handful of
children at home (only 3, in one case, all previously adopted in Thailand) have been denied
requests to adopt; however, some other, larger families have been approved. The DSDW is
apparently considering all requests from larger families on a case-by-case basis. The number
of children currently in the household (vs. older children no longer living there) would also
be weighed by DSDW.
For a married couple, a total of two divorces (one per spouse, or two for one spouse)
are apparently acceptable. Length of marriage, and length of remarriage after a divorce/s are
not codified by the adoption law, but a family that's extremely newly married, especially after
divorce, might encounter some difficulties, so you must consult your agency for opinions on
your specific situation. Couples need not be infertile, though fertility documentation may be
requested, and a pregnancy during the process will delay, and may derail, a Thai adoption.
(Thai officials may agree to put your application on hold for a while if you are seeking to
adopt an unidentified child but will probably not approve a request to adopt an identified
special needs child if you become pregnant during the process).
The Thai authorities carefully scrutinise family income and seek evidence that a family
can provide for its children. Detailed income documentation is required, and families should
be prepared to provide wealth is not a program requirement, and the Thai law does not
specify income levels. The serious illnesses of the parents would be evaluated on a case-by-
case basis and could prevent an adoption. The Thais do not have a codified weight limit for
parents as some sending countries (Korea, China) now do. However, recent (2006) anecdotal
reports indicate that the DSDW/Child Adoption Center is increasingly concerned about this
and has rejected a few families for being unacceptably overweight (and thus, presumably,
more likely to have serious health issues that would interfere with parenting).1257
VII. ISSUES OF ADOPTION AND NATIONALITY FOR ORPHANS
According to TCPA, 2003 the term “orphan” means a child whose father or mother has died,
or who has no evidence of parents or whose parents cannot be traced.1258 From this definition,
we may infer that there are two issues, first was the issue of a child whose father or mother
has died and the second issue was the issues of orphans whose are known to have been born
in Thailand but their parents are unknown. In the later case the orphan has a connection to
Thailand under ius soli, but it was unknown whether the orphan has a connection to any state
1257 Thai Embassy, 2007.
1258 Thai Child Protection Act, 2003 (TCPA, 2003), Article 4.
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under ius sanguinis. In such a case, the orphan cannot get the right to Thai nationality
automatically under ius sanguinis because of unknown of his parent nationality.
To protect the interests of the orphan, there are three possible legal presumptions have
to be made about the parent of the orphan. Firstly, assuming the parent had possessed the
Thai nationality. In such a case the orphan shall require Thai nationality automatically by ius
sanguinis. Secondly, assuming the parent was a permanent residence. In such a case the
orphan will entitle to acquire Thai nationality automatically by ius soli and thirdly, the parent
was not a permanent residence, in this case the orphan has a right to apply for Thai
nationality by birth under ius soli1259. However, the orphan who was born in Thailand whose
parent was unknown or his/her parent who are not granted either Thai nationality or
residence, may still have a right of domicile in Thailand under private law of the child.
VIII. CHALLENGES FOR THE TCPA 2003
It is expected that TCPA, 2003 able to provide protection and care not only to Buddhism but
also to Muslim orphans. It is the hope of the Thai government that by allowing the TCPA,
2003 to apply in Thailand, the following points must be taken into consideration. The TCPA
2003 shall meet the protections and cares of the Muslim population in Thailand and it must
be in conformity with the Malay1260 custom and beliefs,
(1) To include in the steering committee members from the office of the Central Islamic
Committee (Thai Royal Act concerning Muslim mosque,1947) and the four Islamic
magistrates (Dato’ Yutitham)1261
(2) To formulate legal measures along with social tools in preventing the act of
abandonment,
(3) To establish coordinating council in every province to take the interest of the orphan
children,
(4) Significant efforts will also be required to raise awareness among Muslim leaders of
the new law on child protection,
(5) Ad hoc committees must be set up to study and review some provisions in the
TCPA,2003,
(6) To improve the ways and means to further collaboration amongst the government
agencies, and private-run orphanage center in the southern region in providing protection to
orphan children.
IX. CONCLUSION AND IMPLICATIONS
From the discussion above it shows that Thailand has taken measures to ensure the interests
of the child and orphans are protected, particularly the orphan’s right to the nationality, life,
residence, development and well-being. Local and central government should be responsible
for children and orphans, but the responsibility may be shared by different agencies of the
law. Voluntary organisations should also be involved in their welfare. More orphanage
centres should be established through local and central government to provide training and
education to children and orphan victims. These institutions should be provided funds so that
they are able to provide the required facilities to children and orphan victims. In term of study
implications, the discussion of this study may provide an overview of the TCPA, 2003.
1259 Saisoonthon, P.K. “Children with Problems of Proving Rights to Thai Nationality,” Thailand Human Rights
Journal, 42(1), pp. 4-5.
1260 Mudmarn, Seni. Social Science Research in Thailand: The Case of the Muslim minority, in Omar Farouk
Bajunid(eds), Muslim Social Science in ASEAN, (1994), Kuala Lumpur: Yayasan Penataran Ilmu,p.32.
1261 Dorloh, Sulaiman. The Position of Islamic Law in the Four Southern Border Provinces of Thailand, Journal
Shariah: API, UM, 14, (2006), pp.6-17.
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Nevertheless, this article is an eye-opener for practitioners and academicians about TCPA,
2003. At least it provides guideline in promoting how does the Thai child law should be
looked like. However, there are two main issues remaining unanswered, which need to
investigate in the future study. These issues are about a limited evident of empirical results
about the usability of Islamic ethics in orphanage center and the issue of the conditions of life
of widows and orphans after the death of their husbands and fathers, respectively; to know
the nature and amount of support provided by the local and central government to them; to
make an assessment of their well-being and future prospects with regard to health, education,
personality development, income and gender; and also to provide a platform for the
government and non-government organisations for formulation of policy and program
implementation. Therefore, this limitation can be overcome by pursuing a survey to the topic
of study. It is the target of researcher to plan to survey the Islamic and private run orphanage
centers in southern region of Thailand. All the preliminary stage, the study will be conducted
in Pattani, Narathiwat, Yala, Satul and some areas of Songkhla province. Choosing these four
provinces and some areas of Songkhla province are due to existence a large number of
Muslim population.
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22 October 2022
E-ISBN 978-967-491-267-3
p. 301-310
24. A CRITICISM OF SECTION 4 OF THE
MUSLIM FAMILY LAWS ORDINANCE 1961
AND ENFORCEMENT OF WILL/WASIYAT:
BANGLADESH PERSPECTIVES
Md.Mostofa
Senior Lecturer, Law Department,
Bangladesh University
Email: [email protected]
Kazi Sonia Tasnim
Lecturer, Law Department,
Bangladesh University
Email: [email protected]
ABSTRACT
The dilemma of inheritance of grandchildren from the pre-deceased child is one
of the most critical areas of Islamic law. According to the classical interpretations
of Islamic law, any son of the deceased in general excludes such grandchildren.
However, many states brought certain changes into the existing format of Islamic
law of succession so as to shield such grandchildren from total exclusion.
Egypt,Tunisia,Syria, Morocco, Pakistan and Bangladesh are remarkable for
binging changes in this particular area. Pakistan brought a significant change in
1961 by section 4 of the Muslim Family Laws Ordinance (MFLO), which is a
milestone event in the history of reformation of Islamic law. In Bangladesh the
same law become accepted through the promulgation of the Laws Continuance
Enforcement order, 1971’.Section of the MFLO affected the whole structure of
Islamic Law of Succession. The main contribution of this work is an attempt to
draw the attention of the proper authority for taking steps to ensure the right of
orphaned grandchildren and other heirs not violating the Islamic law of
succession. For this purpose the author tries to show the injustices to some heirs
and the provisions of Islamic law of succession which have been violated caused
by the section 4 of MFLO and lastly the author hasset up a method that ensures
the right of the orphaned grandchildren neither violating the Islamic rule nor
excluding any heir.
Keywords: Grandchildren, Shariah law, Doctrine of representation, Obligatory
bequest.
Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
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I. INTRODUCTION
In the words of Anderson, among many defects and controversial issues in the Muslim Law
the most serious defect is the rule against representation of a deceased heir-at least where the
children of such heir would be excluded on the principle that the nearer in degree excludes
the more remote.1262 Not only Anderson but many modernists think that this principle causes
much hardship to the orphaned grandchildren. On the basis of the strong supports of
modernists and considering the situations of orphaned grandchildren, many Muslim states
have made provisions to ensure the inheritance rights of the orphaned grandchildren. Egypt in
1946, inserted the principle of obligatory bequest in the bequest law. This provision has
encouraged many Muslim countries to enact law inserting the provision of the obligatory
bequest to ensure the right of the orphaned grandchildren. As a result in 1953 in Syria, in
1956 Tunisia and in 1959 Iraq the device of obligatory bequest system has been introduced.
But Bangladesh and Pakistan have introduced totally a new system of succession that is the
rule of representational succession which clearly violates the traditional Islamic law of
succession. Therefore, the views of Islamic jurists that law which is necessary for ensuring
the rights of orphaned grandchildren, must be made complying with the undoubted
excellencies of Islamic law of succession. So, before and after the adoption of The Muslim
Family Laws Ordinance 1961 inserting the doctrine of representation, all the Islamic scholars,
ulama and even a member of the commission strongly opposed this law. Even many non-
Muslim scholars including Herbert J. Liebesny,1263 Anderson1264 and Coulson1265 think that
section 4 of MFLO is absolute violation of the Shariah law of succession. This individual rule
not only violates the classical Shariah law of succession but also causes severe injustice to
some heirs and undermines the Quran, Hadiths and Ijma.
II. THE INHERITANCE RIGHT OF ORPHANED GRAND CHILDREN UNDER
SHARIAH LAW
Where a person dies leaving his/her children either female or male in the lifetime of his/her
father or mother those children are the grand children of that father or mother. So grand
children may be following kinds:
(1) Female through female link .i.e. Daughter’s daughter
(2) Male through female link. i.e. Daughter’s son
(3) Female through male link .i.e. Son’s daughter
(4) Male through male link. i.e. Son’s son
These four types of orphaned grand children don’t belong to the same class but they
belong to different classes of heirs. Under Hanafi law of succession, all the person who are
entitled to inherit are called heirs who are classified into three groups (1) Sharers (2) Agnatic
heirs or residuary (3) Distant kindred.1266
Among these four grandchildren, in Sunni law of succession daughter’s daughter and
daughter’s son belong to the group of distant kindred. Son’s daughter belongs to the Quranic
heir and son’s son belongs to the agnatic heir.
1262J.N.D. Anderson, Islamic Law in the Modern World, (New York, New York University Press 1959) 78.
1263SerajuddinAlamgir Muhammad, Shari Law and Society Tradition and Change in the
Indian Sub-Continent, (Dhaka, Asiatic Society of Bangladesh,1999) 89-90.
1264J.N.D Anderson, „Recent Reforms in The Islamic Law of Inheritance‟, International and
Comparative Law Quarterly, (Vol. 14, No. 2, (1965)) 357.
1265N.J Coulson, Succession in the Muslim Family, (Cambridge, Cambridge University Press,
(1971)) 150.
1266M Hidayatullah, and ArshadHidayatullah, Mulla`sPrinciles of Mahomedan Law, (19th
edition, New Delli, N. M. Tripahi Ltd (1990) 12th reprint (2002)) 47.
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2.1 Son’s Daughter
A granddaughter takes the position of a daughter in the absence of a daughter and a son of the
deceased. For the granddaughter, there are following condition:
(1) She takes ½ of the property if she exists alone without a son and daughter. Two or
more granddaughters divide 2/3 of the property among themselves.
(2) She takes 1/6 if she exists with a single daughter making 2/3 of the quota of two
or more daughters in the absence of a son. Two or more granddaughters with a
single daughter divide 1/6 of the asset among themselves.
(3) They are excluded in the presence of two or more daughters.
(4) An excluded granddaughter becomes a residuary in the presence of a grandson. A
grandson, thus converts an excluded granddaughter into a residuary and shares
the residue with her in the ratio of 2:1.
(5) A granddaughter is excluded by a son.1267
2.2 Son’s Son
As an agnatic heir he inherits in 24 capacities. Out of these 24 situations, in 14cases the
grandson inherits the whole property excluding others totally: in 10 capacities he inherits 1/3
or more and only in one case, where there is surviving son, whether his father or uncle, he is
excluded.1268
2.3 Daughter’s Daughter and Daughter`s Son
Both of them are distant kindred and are totally excluded by any Qura’nic heir save the
spouse relict or by any male agnate however distant.1269Among four classes of distant
kindred, they are comprised in group I and they take precedence over other heirs.1270
III. THE INHERITANCE RIGHT OF ORPHANED GRAND CHILDREN UNDER
SECTION 4 OF MFLO 1961
In order to remove the sufferings of the orphaned grandchildren, the Commission on
Marriage and Family Laws reported for enacting law ensuring the doctrine of representation.
On the basis of the report of the commission the section 4 of the Muslim Family Laws
Ordinance 1961 was adopted in Pakistan and after independence it has identically been
accepted in Bangladesh. The section 4 of the MFLO says: “In the event of death of any son or
daughter of the propositus before opining of succession, the children of such son or daughter,
if any, living at the time of succession opens, shall per stripes receive a share equivalent to
the share which such son or daughter, as the case may be, would have received if alive”.1271
This doctrine can be illustrated by taking a simple example; a dies leaving his son,
son’s son and daughter’s daughter. In this case the grandson and granddaughter will get that
share what their respective father and mother would have got if alive at the time of death of
their grandfather. So the property of A will be distributed among his son, predeceased son
and predeceased daughter and the share of predeceased son will go to his son (son`s son) and
the share of predeceased daughter will go to her daughter (daughter`s daughter). So son
1267 How to Calculate Inheritance, Shakil Ahmad Khan, New Delhi, p.26.
1268 SerajuddinAlamgir Muhammad has cited it in his “Shari Law and Society Tradition and
Change in the Indian Sub-continent” Asiatic Society of Bangladesh,1999,p-88 with
reference to F.M. Kulay, “Grandsons Inheritance at Islamic Law-Much Ado About
Nothing,” ICLR 13 (1993), pp. 62-3.
1269 Supra note 4, p. 91.
1270 A.AsafFayzee, A, Outlines of Muhammadan Law, 4th edition, Oxford University Press,
Delhi, (1974) P-431.
1271 Sec. 4, The Muslim Family Law Ordinance 1961, Ordinance no.vii of 1961.
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inherits from his father 2/5 of his total property, son`s son inherits 2/5 from his grandfather`s
property and daughter`s daughter inherits 1/5 from her maternal grandfather’s property.
3.1 Impacts of Section 4 of the MFLO 1961
Undoubtedly, section 4 is one of the most major reformations done in the area of Islamic law
of Succession. The impact of section 4 of the Muslim Family Laws Ordinance, 1961 upon
Shariah law of inheritance is to be analyzed properly. This particular provision encapsulated
in section 4, in fact, adversely affected certain fundamental principles of Islamic law of
Inheritance. Some of such instances are as follows.
3.1.1. Violation of Order of Priority among Different Classes of Heirs
For the purpose of distribution of property of the propositus among the heirs, Islamic law of
inheritance classifies them into three broad categories in order of priority. They are the
sharers, agnatic heirs and distant kindred. The legal order of distribution among them is that
the property will go to the sharers first, and the residue property will be distributed among the
agnatic heirs in order of priority intra class. Thus, groups one and two may get the property at
the same time one after another, since the first group as a class does not exclude the second
group rather just takes precedence over the other. The heir who is grouped as distant kindred
can succeed only in the absence of the heirs of the first two groups except the husband or
widow. Thus, each heir of the first two groups except husband and widow excludes any
distant kindred totally. In other words, distant kindred cannot get any property in presence of
any sharer or agnatic heir except the husband and widow. This is the basis of classification of
the heirs which forms the first basis of exclusion. This order of priority is totally diminished
by section 4 of the MFLO 1961. Thus under MFLO, even distant kindred, e.g. daughter’s son
and daughter’s daughter, gets the property with the heirs of first and second group.1272
3.1.2.Under the Shariah: A Distant Kindred Is Excluded by Sharer or Asaba
Heir Share Reasoning
Res Son is originally an asaba and the daughter has been
Son converted into residuary by the son.
Excluded The heirs of the superior classes (both sharer and asba)
Daughter are present.
Daughter’s
daughter
3.1.3. Under the MFLO: A Distant Kindred Succeeds with Sharer or Asaba
Heir Share Reasoning
Res
Son Son is originally an asaba and the daughter has been
converted into residuary by the son. Daughter’s daughter
Daughter
Daughter’s will also be a residuary being treated as a daughter.
daughter
Under MFLO, distant kindred not only may inherit with sharer and asaba but even
sometimes may exclude a Sharer.
1272 Islamic Law of Inheritance,Dr.MuhammadEkramulHaque, University of Dhaka, p. 244.
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3.1.4. Under the Shariah: A Distant Kindred Is Excluded by Sharer
Heir Share Reasoning
1/3 increases to the As sharer, they are more than one in number and no
Uterine whole by Radd excluder to them is present.
brother and
uterine sister Excluded The sharers are present who exclude all distant kindred.
Daughter’s
daughter
3.1.5. Under the Shariah: A Distant Kindred Even May Exclude A Sharer
Heir Share Reasoning
UB and US Excluded Daughter’s daughter is treated as daughter and so she
Daughter’s ½ that increases to excludes them like the daughter.
daughter the whole by
Radd. Since she is getting the property of the daughter.
3.2. Violation of the Fundamental Principle of Distribution between Male and Female in
the Ratio of 2:1
The Qur’an clearly declared that a male receives a share equal to that of two females’.1273
Thus, the son will get double of daughter’s share and Son’s son will get double of son’s
daughter’s share. It will not be applicable between son and son’s daughter, because they do
not belong to the same class and the term ‘walad’ used by the Qur’anic verse either mean
‘Child’ or ‘son’s child’, but in the same case it cannot be used for both the meaning.
However, this Qur’anic principle which forms an important rule of Islamic law of inheritance
has been clearly affected by the provisions of section 4.
8QGHU WKH 0)/2 0DOH DQG )HPDOH *HW (
of Distribution
This rule of ‘double share for male’ is applicable in cases of the pairs of son and daughter.
Son’s and Son’s daughter, full brother and full sister, consanguine brother and consanguine
sister, uncles son and uncle’s daughter, brother’s son and brother’s daughter, and in cases of
their descendants as such.
Heir Share Reasoning father
Son’s son ( offspring of the ½ as residuary Representing his father
(PDS1)
pre-deceased son1) ½ as residuary Representing her
Son’s daughter (Offspring of (PDS2)
the pre-deceased son2)
In the above case, son’s daughter is getting ½ in the representative capacity of her
father though she is a female, whereas Qur’ran clearly says about the personal capacity.
Interestingly, if both of them would be the offspring of the same pre-deceased son, then their
position under Shariah and MFLO would have been same. For example,
1273 This rule of ‘double share for male’ is applicable in cases of the pairs of son and daughter, son’s son and
son’s daughter, full brother and full sister, consanguine brother and consanguine sister, uncle’s son and uncle’s
daughter, brother’s son and brother’s daughter and in cases of their descendants as such.
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3.2.2. Both under the Shariah and the MFLO: Male Is Getting Double Share of the
Female
Heir Share Reasoning father
Son’s son (of pre-deceased 2/3 as residuary Representing his father
(PDS1)
son1) 1/3 as residuary Representing her
Son’s daughter (of the pre- (PDS2)
deceased son2)
Thus, if we consider above two son’s daughters, each of them in fact enjoys the same
identity, that is son’s daughter, and Shariah also treats each of them in the same way; whereas
MFLO distinguished between these two because of the application of the doctrine of
representation. This is the double standard taken by the MFLO towards the same kind of heir.
IV. VIOLATION OF THE FUNDAMENTAL PRINCIPLE OF HIERARCHY OF
DEGREE
Islamic law of succession recognizes the principle of hierarchy of degree by which nearer in
degree excludes more remote. Thus the nearness of the relationship forms the prior claim to
get the property. However, this rule is not strictly applicable in Sunni school, as the daughter
does not exclude the son’s son, and thus it appears that this rule of exclusion is applied only
in the same class of heirs. But, it is true that under Shia school even the daughter excludes
son’s son. Under the MFLO, it is a violation of the principle of hierarchy of degree.
Heir Share Reasoning
½ as residuary As asaba.
Son ½ as residuary
Son’s son Representing her father
(PDS), whereas he would be
totally excluded by Shariah
because of the hierarchy of
degree by the presence of
son.
V. CREATES NEW METHODOLOGY OF DISTRIBUTION
Under Shariah law, everyone gets the property in his or her own capacity. But if section 4 is
applied, then every child of the pre-deceased child will get the property in a representative
capacity always. Thus, it will create a completely new mode of distribution. The innovative
line will be clear from the following example where the MFLO introduces new scheme of
distribution.
Heir Share under MFLO Share under Sharia
Son’s son (of
PDS1) ½ representing their father All will be converted into residuary together to be
PDS1, each gets ¼ divided the whole property among them equally,
Son’s son (of each gets 1/3 at his independent capacity.
PDS1)
Son’s son (of ½ representing his father
PDS2) PDS2
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In the above examples, someone dies leaving 2 son’s son from his first pre-deceased
son and 1 son’s son from his second pre-deceased son. Shariah treats them equally as each of
them gets property in his dependent capacity. But, the MFLO distributes the property to them
as the representatives of their deceased father. Thus, interestingly, MFLO has become
discriminatory towards the sons of the same grade under the similar circumstance. Probably,
the persons who advocated for making such a rule they even could not contemplate of such
an anomalous situation, though they always tried to portray their report to have been made
based on equity and just principles.1274
VI. UNNECESSARY INTEREFERENCE UNDER CERTAIN CIRCUMTANCES
There are many cases where the orphaned grandchildren are not deprived even under Shariah
law. But, section 4 becomes applicable everywhere irrespective of their exclusion. For
example, if someone dies leaving one daughter will get ½ as a sharer and the rest ½ will go to
the Son’s Son. But MFLO modifies it and accordingly, daughter will get 1/3 and the son’s
son gets 2/3. There is no logical basis for bringing such a change. The objective of the law
was to save the orphaned grandchildren from deprivation, but there is no specification made
in the said law that it will be applicable in the cases where the orphaned grandchildren will be
deprived according to the regular rules of distribution. The law was spelt in such a way that
gives the impression that as if such grandchildren are always totally deprived under the
Shariah law. But, the fact is different. F.M. Kulay has made the point very clear with specific
statistic. He ‘argues that the concern of the orientalists and the apologetic, modern and
progressive Muslims for the orphaned grandson is misplaced.’1275Kulay pointed out that
there are 27 and leaving aside the two cases of emancipated slaves 25 possible situations in
which a grandson is an heir of his grandfather.1276 Out of these 25 situations, in 14 the
grandson inherits the whole property excluding others totally; in 10 he inherits one-third or
more; and only in one situation where there is a surviving son, whether his father or uncle, he
is excluded. Thus importing generally the concept of representational rule upsets the whole
structure of Shariah law. Coulson rightly pointed out that ‘[b]because the Pakistani rule of
representational succession by lineal descendants is absolute in its application and not
confined to cases where the grandchildren would otherwise be exclude from succession, it
brings about radical changes in the structure of inheritance, affecting not only the heirs’
quantum of entitlement but also their priorities.’1277
This new system of distribution causes a caustic vicious injustice to some heirs and
violates the Islamic law of succession. So it is clear to us that this single rule in various ways
has completely destroyed the pillar of Islamic law of succession.
VII. THE PROBLEM OF INHERITANCE OF ORPHAN GRANDCHILDREN
UNDER ISLAMIC LAW OF SUCCESSION: THE CONCEPT OF OBLIGATORY
BEQUEATH AS A SOLUTION
7.1 Basic Theme of the Obligatory Bequeath Generally
Making will is an optional power, in fact, to be exercised by the Muslim testators. But
considering the circumstances, in cases of the deprivation of the children from the pre-
1274 In this connection se the Report of the Commission on Marriage and Family laws in The Gazette of
Pakistan,Extraordinary published by Authority, Karachi, Wednesday, June 20, 1956, based on which MFLO
was enacted.
1275 SerajuddinAlamgir Muhammad has cited it in his “Shari Law and Society Tradition and
Change in the Indian Sub-continent” Asiatic Society of Bangladesh,1999,p-88.
1276 Ibid.
1277 Coulson N.j., Succession in the Muslim Family, Cambridge University press, 1971;p.152.
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deceased children under regular succession law, the grandfather of the said grandchildren will
be under a legal obligation to make a will in their favor to protect them against absolute
deprivation. Such a bequeath will be restricted up to the one-third of the total property, so that
it does not violate the principles of ‘Will’ under Islamic law.
7.2 Impact of Obligatory Bequeath on Shariah Law of Succession
It does not affect the Shariah law of succession as section 4 of the MFLO does affect. This
rather holistic approaches to solve the problem that take into consideration other relevant
mechanisms like ‘will’. Once a will is made following its restrictions of no will for more than
one third of property or anything in favor of any heir who succeeds, then in no way it
hampers the succession law. The advantages of such device are that –firstly, this system of
will may be made applicable in those cases where the said grandchildren are excluded only.
So, if any grandchild of any pre-deceased child gets property under the original scheme of
Shariah law of inheritance, this rule of obligatory bequeath will not be applicable, whatever
may be the actual portion of the property received by that grandchild. Instead of making it as
a general rule for distribution of the property among the children of the pre-deceased children
it may be applied only in the cases of exclusion. Thus, unlike section 4of the MFLO, 1961, it
may avoid the cases of unnecessary interference. Secondly, since it solves the problem
following a different device, so in no way if affects Shariah law of succession.Consequently
thirdly, no question of being affected of other heirs arises, unlike MFLO. It does not even
abrogate the male female ratio of the property as it is an independent way of solving the
problem, as that rule is applicable only in case of succession. Thus, it appears that following
this device any clash with the Qur’anic verses regarding inheritance may be avoided
technically. This is the great advantage of this formula. Just one question may be raised
against it-what( power of making will) has been made optional can that power be restricted
by turning it into obligatory? There are also some arguments in favor of this interpretation
which are discussed under the following heading. However, even though if these arguments
do not seem to be tenable and satisfactory to someone still it remains as the sole objection
against this formula, whereas there are lot of direct objections against the MFLO formula of
representational rule including the frustration of the whole Islamic law of succession ordained
by the primary sources.
7.3 Basis of Obligatory Bequeath
The system of obligatory bequeath is not an innovation in the sense that it is found
conceptually in the Quran and Hadith. Almighty Allah says: “It is prescribed for you,when
death approaches any of you, if he leaves wealth. That he make a bequest to parents and next
of kin, according to reasonable manners. (This is) a duty upon the pious.”1278
Although the great majority of the jurist considered that this verse had been completely
abrogated or repealed by the later Qur’anic rules of inheritance, a small but respectable
minority (including the of Muslim jurisprudence himself, al –Shafi’I) held that the verse was
repealed only in respect of those close relatives who actually received a share of inheritance ;
and that it was still desirable at least for bequests to be made in favor of other close
relative.1279 This view, though is of the minority, seems to be convincing, more perfect and
logical. A few jurists, notably the prolific author IbnHazm, a representative of the now
extinct Zahiri school, went further and insisted that the Qura'nicverse implied a definite legal
obligation to make bequests in favour of close relatives who were not legal heirs, and that if
1278 Holy Quran 2:180.
1279 Coulson N. J. Succession in the Muslim Family, Cambridge University press, 1971;p.146.
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the deceased had failed in his duty to make this obligatory bequest the court should make it
for him.1280
Moreover, it has been narrated on the authority of Qatadahthat the Prophet (PBUH)
said:1281 “Consider (the condition of) your relatives who are in need yet have no (share in
your) inheritance and make a bequest for them from your property according to reasonable
manners.”1282 The prophet (PUBH) has also said: “It is rightful upon a Muslim that he must
not spend two (consecutive) nights without having his written bequest with him if he has
anything that can be bequeathed.”1283 Scholars have unanimously agreed that bequest is not
obligatory for those who are not of one’s relative, and this means that the obligatory bequest
be for one’s relatives.1284
7.4 Different Types of Obligatory Bequeath
The system of obligatory bequeath was first introduced in Egypt in 1946.1285 It has been
introduced in different states in different forms with a little modification in the original
concept. In fact, this difference is based on the meaning of grandchildren and specific
procedure to calculate the property. In Syria and Morocco the children of a pre-deceased son
or agnatic grandson, who would be excluded from succession under the traditional law, are
now entitled to either the share of the inheritance their father would have received had he
survived the propositus or one-third of the net estate, whichever is less.1286 No provision is
made for children of the deceased’s daughter.1287 In Egypt and Tunisia the children of a pre-
deceased son or daughter, who would be excluded from succession under traditional law, are
entitled to the share their parent would have received had he or she survived the propositus,
within the maximum limit of one-third of the net estate.1288 Thus ‘the descendant heir in
question must not be one of those who deserve a share in the inheritance, and if he deserves
even a small share, no bequest will be obligatory in this case’.1289 An example of this is that a
man may die and leave behind a daughter and the sons of his son who died during this man’s
lifetime.1290 In this case the son’s sons deserve inheritance, so there is no obligatory bequest
for them.1291In Egypt, but not in Tunisia, the children of an agnatic grandson or
granddaughter, how low so ever, benefit from the same rule.1292
Coulson1293 mentions three methods of applying the law relating to obligatory and he
preferred Abu Zahra’s system in comparison with the ‘court system’ and ‘mufti system’. The
1280 Ibid.
1281 Al- FiqhulMuyassaruMinal- Qura’ni was- sunnah. Simplified Islamic Jurisprudence Based on the Qur’an
and the Sunnah, Complied and translated by Muhammad M. Abdul-Fattah, Edited by Reima Y. Shakeir,
published by Dar-Al –manarah. Egypt.vol.2.2004.p.1137.
1282 Narrated by AbdurRazzaq and others. See for reference ibid.
1283 Narrated by Al- Bukhari, Muslim, and others.
1284 Al- FiqhulMuyassaruMinal- Qura’ni was- sunnah. Simplified Islamic Jurisprudence Based on the Qur’an
and the Sunnah, Complied and translated by Muhammad M. Abdul-Fattah, Edited by Reima Y. Shakeir,
published by Dar-Al –manarah. Egypt.vol.2.2004.p.1138.
1285 Coulson N.j., Succession in the Muslim Family, Cambridge University press, 1971;p.145.
1286 Ibid.pp144-145.
1287 Ibid.p.145.
1288 Ibid.
1289 Al- FiqhulMuyassaruMinal- Qura’ni was- sunnah. Simplified Islamic Jurisprudence Based on the Qur’an
and the Sunnah, Complied and translated by Muhammad M. Abdul-Fattah, Edited by Reima Y. Shakeir,
published by Dar-Al –manarah. Egypt.vol.2.2004.p.1139.
1290 Ibid.
1291 Ibid.
1292 Coulson N.j., Succession in the Muslim Family, Cambridge University press, 1971;p.145.
1293 Ibid.pp.145-149.
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method formulated by Shaykh Muhammad Abu Zahara1294 has been termed by coulson1295 as
a ‘sound method’. Coulson summarized this system in the following words-
The estate is first apportioned as if the pre-deceased child were an entitled heir, and his
or her share, or the bequeathable third, whichever is less, is taken out of the estate and
allotted to the grandchild or grandchildren as a bequest. The remainder of the estate is then re
apportioned between the actual legal heirs. The method consistently ensures both that the
grandchildren receive what their predeceased parent would have taken, within the limit of the
bequeathable third, and that the rights of the actual legal heirs inter se (in respect of the estate
left after the deduction of the bequest) are not affected.1296
7.5 The Way of Distributing Inheritance with the Obligatory Bequest
The following steps may be followed for distributing inheritance properly and correctly when
there is an obligatory bequest, i.e., when he descendant heir is to be given the right of his
dead father for example:
(1) The share of the son of the deceased person who died during the life of the latter
is to be defined as if he was present at the time of distribution.
(2) After that the share of the dead son is to be taken out of the property and given to
his or her descendant who deserves the obligatory bequest.
(3) Then the remainder of the property is to be distributed among the real heirs each
according to his or her Shar’i share.
Above obligatory bequest system had been adopted by Egypt and subsequently adopted
by many countries like Syria, Jordan, Iraq, Tunisia, Algeria and Morocco. Bangladesh should
adopt this obligatory bequest system so that he does not violate the fundamental principles of
Islamic law of succession.
VIII. CONCLUSION
After abovementioned discussion it is clear that the doctrine of representation is a quite new
system in Muslim law and this single provision damages the whole system of Islamic law of
succession. The jurists like Coulson and Anderson who passionately supported this provision
yet they did not deny the true fact that the section 4 of MFLO absolutely violates the
fundamental principles of Islamic law of succession. At the same time, it created injustice to
others by concentrating justice only to the orphaned grandchildren. In doing so, it created
more problem than solutions. Unnecessary interference is another great defect of this law as
in many it provides a new scheme of distribution for the orphaned grandchildren though they
were not actually deprived under existing Shariah law. Obligatory bequest system is a great
solution that the section 4 of MFLO has created. An obligatory bequest can be made in favor
of the grandchild not exceeding one-third of whole property because under shariah law
bequest more than one-third will not be effective without the permission of the heirs. In
Bangladesh, a law can be enacted making provision for the obligatory bequest discussed
above.
1294 Professor of Islamic law at the University of Cairo, in his Ahkam-al- Tarikatwa’lMawarith(
Cariro,1963),pp.284.
1295 Coulson N.j., Succession in the Muslim Family, Cambridge University press, 1971;p.148.
1296 Ibid.pp148-149.
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22 October 2022
E-ISBN 978-967-491-267-3
p. 311-326
25. THE CASTRATION PUNISHMENT FROM
HUMAN RIGHTS AND ISLAMIC LAW
PERSPECTIVE
Ahmad Sabirin
Undergraduate Law Student, Faculty of Law, Trisakti University, Jakarta, Indonesia
E-mail: [email protected]
Febrian Duta Adhiyaksa
Undergraduate Law Student, Faculty of Law, Trisakti University, Jakarta, Indonesia
Email: [email protected]
Raafid Haidar Herfian
Undergraduate Law Student, Faculty of Law, Trisakti University, Jakarta, Indonesia
Email: [email protected]
ABSTRACT
The castration for Pedophillians, the application of this punishment has sparked
controversy, where some people think it is appropriate to provide a deterrent
effect. But on the other hand, this punishment is considered a violation of human
rights. The implementation of chemical castration is a new punishment in
Indonesia specially, there are pros and cons related to the implementation of this
action. The implementation of castration is expected to be able to provide a
deterrent and preventive effect to perpetrators, as well as to reduce the level of
sexual crimes against children. The implementation of chemical castration is
considered a violation of human rights. Human rights are essentially the most
basic rights possessed by all human beings as the highest gift from God Almighty,
wherever humans live, because with these rights humans can become dignified
creatures. may punish humans by degrading human rights and human values.
Based on this background, the authors draw two conclusions, namely; how is the
castration punishment for pedophillians in the perspective Islamic Law? How is
the castration punishment for pedophillians in the perspective of Human Rights?
The paper uses the library research method. What is called library research is a
series of activities related to the methods of collecting library data, reading and
recording and processing research materials. Literature research is not only an
activity of reading and recording the data that has been collected. Answering the
question in the formulation of the problem, castration, whether physical or
chemical in the view of Islamic law, is a type of punishment that is not
permissible or unlawful to do, because it is contrary to the authentic arguments
that have been agreed upon by the scholars. In essence, in the turats (classical)
books of Islamic law, the majority of scholars forbid castration for humans.
Among them, Imam Ibn Abdil Bar in Al Istidzkar (8/433), Imam Ibn Hajar Al
Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward
Asqalani in Fathul Bari (9/11), Imam Badruddin Al 'Aini in 'Umdatul Qari
(20/72), Imam Al Qurtubi in Al Jami' li Ahkam Qur'an (5/334), Imam Shan'ani in
Subulus Salam (3/110), and other Fiqh scholars.
Keywords: Castration, Pedophillians, Human Rights and Islamic Law.
I. INTRODUCTION
The chemical castration is an action imposed on perpetrators of sexual violence against
children in addition to the main punishment in the form of imprisonment and other additional
penalties. Chemical castration is done by injecting certain chemicals to suppress excessive
sexual desire. Chemical castration sanctions were applied in Indonesia through Law No. 17
of 2016 on the Second Amendment to Law No. 23 of 2002 on Child Protection. The pros and
cons of applying sanctions on chemical castration are the main issues in this article. The
opposing party is based on the ratification of the UN Convention on Anti-Torture or other
punishments that are cruel, inhumane and degrading to human dignity. Amnesty International
Indonesia says the application of chemical castration is nothing more than an act of adding
cruel acts to other cruel acts. A pro-point view of child human rights protection. Child
Human Rights, especially child human rights, which is in special condition as a victim of
sexual crimes is guaranteed by the State through regulations. The application of chemical
castration for perpetrators of child sexual crimes is the embodiment of the protection of
human rights of children victims of sexual violence.1297
Chemical castration is considered an additional punishment that can be classified as a
special and unusual measure required. In practice, chemical castration can be done
physically, surgically, and secondly, by injecting some chemical substances. Chemical
castration is treatment by treatment, so chemical castration is not the same as physical
castration. Chemical castration is a different type of castration from physical castration, in
which the body is surgically removed. The effect of chemical castration occurs through the
injection of certain chemicals, namely the injection of anti-testosterone substances. This
substance is almost 100% testosterone, 95% of which is produced by male testosterone cells.
In Nugroho Setiawan, “The trigger for testosterone production is luteinising hormone, which
is secreted by the anterior pituitary gland of the brain. Well, anti-testosterone substances
prevent the brain glands from producing hormones that trigger testosterone production. If
suppressed, testosterone automatically stops testosterone production. The effects of anti-
testosterone substances are only temporary. Anti-testosterone drugs, like other chemical
drugs, are time-dependent.1298
The advantages and disadvantages of chemical castration are not only in Indonesia, but
since it was first used in the 19th, when given to pathologists to reduce sexual behaviour, in
the 1960s, German doctors injected anti-androgens to try to curb paraphilia-like behaviour in
men. In 1966, the administration of medroxyprogesterone acetate to treat sex offenders for
pedophillians behavior with their six-year-old son. According to this view, chemical
castration is applied both as a treatment and as a means of sexual violence. In 1981,
medroxyprogesterone acetate was tested on 8 men for one year and showed no negative side
effects, and chemical castration was recommended for successful treatment for sex offenders.
This status indicates that several countries have used chemical castration in their actions
against perpetrators of sexual violence.
1297 Hafrida, 2021, “Pros and Cons of Chemical Castration: Progressive or Primitive Actions” Indonesia
Criminal Law Review 1 (1), p. 12.
1298 Nugroho Setiawan, 2016, “An Andrology Specialist at Fatmawati Central General Hospital, South Jakarta.
Quoted in BBC News Indonesia, accessed on October 13, year 2016.
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The Castration Punishment from Human Rights and Islamic Law Perspective
Chemical castration is the administration of antiandrogenic chemicals in the form of
injections with the addition of oral or oral drugs. Administration of this drug/chemical
initiates a chain reaction, the reaction occurring in the brain and elsewhere. Chemical
castration is not permanent, so it must be done continuously or regularly. So, if done in the
rehabilitation period, it usually lasts 3-5 years. Castration is not a new practice in the criminal
underworld. This punishment lasted for centuries. In fact, many countries in the world have
adopted it. For example, the United States, Poland, Moldova, Estonia, Israel, Argentina,
Australia, South Korea, Russia, Germany, the United Kingdom and the United Arab
Emirates.1299
On May 25, 2016, the Indonesian government issued Regulation No. 1 2016 to replace
the law, which was later adopted by Law No. 17 of 2016 as a regulation that deals with many
sex-crimes. Law Number 17 of 2016 is a regulation that regulates the protection of minors
and the threat of sanctions for perpetrators of sexual crimes against children. This law is the
responsibility of the government for the protection of minors.1300
Based on the records of the National Commission for Women on women, 348,446
cases of violence against women occurred in Indonesia, both reported and handled
throughout 2017. This case data is an application of real case data handled by service
institutions for women victims of violence, both managed by the state, as well as community
initiatives including law enforcement agencies. Based on the records of the National
Commission for Child Protection, through 2017, the National Commission for Child
Protection has received complaints of 2,737 cases of violence against children. From the
figure of 2,737 of these, 52 percent were dominated by sexual crimes, which are not
only carried out individually, but also in groups or called gang rape. The forms of sexual
violence are acts of rape, obscenity, incest, and the most dominant is sodomy. The total
number of victims from the reports that were received throughout 2017 was 2,848. With most
male victims, many have become the target of predators. The number is 59 percent. While the
number of victims, girls make up 40 percent. When viewed from the age level, the number of
victims of violence mostly occurs at the age of 6-12 years1301 and from the group’s
educational background. Many victims of child abuse occur in the group of kindergarten
students, and elementary school. The majority of perpetrators of violence against children are
the closest people. Based on the discussion above, to get a clear and focused explanation, the
writer wants to formulate two problems, as follows, namely: how is the application of
castration for pedophillians in countries that enforce it? How is the castration punishment for
pedophillians in the perspective of Human Rights and Islamic Law?
II. METHODELOGY
The research approach used is normative research, namely research that aims to examine
legal principles, legal systematisation, content synchronisation, and content comparison.1302
This study aims to examine the legal principles, both in international law, human rights and
Islamic law regarding the regulation of legal protection against pedophile perpetrators. A
study that uses library materials as primary materials or secondary materials, consisting of
primary materials, secondary legal materials and tertiary legal materials, where there is no
need to seek information directly in the field. The nature of legal research is in line with the
1299 Anisa Nur, “The Sentence of Castration for Perpetrators of Sexual Crimes”, Citizenship Journal. Vol. 2 No.
December 2, 2018, p. 31.
1300 Tunggal S, Nathalina, 2020 "The Imposition of Chemical Castration for Sexual Crime Actors" Journal of
Law & Development Vol. 50 No. 2 (2020), p. 330.
1301 Rif'an, Rodliyah, and Khairani, 2022 "Sanctions of Castration: How are Laws Arranged in Indonesia?",
Journal of Kertha Semaya. Vol. 10 No.6 of 2022. p. 1398.
1302 Ronny Hanitijo Soemitro, 1990. “Legal Research Methodology and Jurimetr”. Jakarta: Ghalia Indonesia.
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nature of the law itself. In guiding and answering this problem, constructivism paradigm is
used. The use of this paradigm is to find the value of truth based on law and human rights in
realising the role of law in an essential truth. In an effort to find the value of truth, of course it
must be based on laws and regulations that cannot be separated from aspects of cultural,
social, political and economic diversity that are built according to the needs of the
community. Meanwhile, the approach uses a combined approach of normative juridical and
empirical juridical approaches or known as the socio-legal research approach. This approach
is taken to understand the law according to its context, namely the context of the legal
community; government and society. With a socio-legal research approach, the author
conducts two research aspects. The first is the legal research aspect (or so-called normative
juridical), with the object of research in the form of laws and regulations. Second, the socio
research aspect (empirical research), because the object of research is not merely legal norms,
but also examines the reality in society. In this study, the construction is traced through the
interaction between fellow informants and the object of study using the hermeneutic approach
method. Terminologically hermeneutics is the process of changing the situation of ignorance
into understanding and understanding.
III. LITERATURE REVIEW
3.1 Negara Hukum
The embryo of the ideal state of law is actually very old, much older than the age of State
Science or Constitution Science.1303 The idea of a rule of law was first put forward by Plato in
his book entitled "Nomoi" which was later translated into English with "The Laws",
suggesting that good state administration is based on good legal arrangements.1304 Plato's
opinion by Aristotle was perfected by writing the book Politica which revealed that a good
country is a country that is ruled by a constitution and has legal sovereignty. This opinion is
reinforced by George Sabine by stating that: "Constitutional rules in the state are closely
related, also with the question of whether it is better to be regulated by humans or the best
law, as long as a government is according to law, therefore the rule of law is accepted by
Aristotle as a sign of a good state and not merely as a necessary necessity. not feasible”.
The ideas expressed above are both vague and supposedly even submerged by a very
long time, until finally the concept of "rechtstaat" emerged. The idea of a legal state
rechtstaat actually became popular in the 17th century as a result of the socio-political
situation in Europe which was dominated by absolutism. So that the people, especially the
intelligent and rich group or "Menshen von Besitz und Bildung", want an overhaul of the
unfavorable socio-political structure, with a liberal rule of law so that everyone can safely
and freely seek their own livelihood and life. Two prominent figures in this rechtsstaat were
Immanuel Kant and Friedrich Julius Stahl, whose thoughts colored the concept of the rule of
law. Immanuel Kant, understands the rule of law as Nachtwaker staat or Nachtwachterstaat
(Night watch state), whose job is to ensure public order and security. According to Immanuel
Kant, the concept of a rule of law in its development is seen as too narrow, because the task
of the state is not only as a night watchman, but develops more broadly and actively
intervenes in the economic, social and cultural fields. Frederich Julius Stahl in his work
entitled Philosophie des Rechts, which was published in 1878, presents the elements of a new
rule of law as a refinement of the rule of law according to Immanuel Kant, the elements of
the rule of law are: (a) protection of rights human rights; (b) separation and division of
powers to guarantee those rights; (c) government based on statutory regulations; and (d)
1303 Ni’matul Huda, Negara Hukum, Demokrasi dan Judicial Review, (Yogyakarta: UII Press, 2005).
1304 Tahir Azhari, Negara Hukum Suatu Studi tentang Prinsip-Prinsipnya Dilihat dari Segi Islam,
Implementasinya pada Periode Negara Madinah dan Masa Kini, (Jakarta: Bulan Bintang, 1992).
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administrative justice in disputes1305. According to Scheltema, the elements of rechtstaat are
as follows:
(1). Legal certainty;
(2). Equation;
(3). Democracy;
(4). Government that serves the public interest.
At almost the same time, Albert Venn Dicey's concept of the rule of law emerged in
1885 through his work entitled Introduction to the Study of the Law Constitution, which was
born under the auspices of the Anglo-Saxon legal system by presenting elements of the rule
of law as follows:
(1). The supremacy of the rule of law (supremacy of the law); the absence of arbitrary
power, in the sense that a person may be punished if he violates the law.
(2). Equal position in the face of the law (equality before the law).
(3). Guaranteed human rights by law and court decisions.
The discourse on the concept of the rule of law in its development has undergone many
renewals. As developed by the International Commission of Jurist at its conference in
Bangkok in 1965. The conference gave birth to a consensus that the definition and conditions
of a rule of law are as follows:
(1). The existence of constitutional protection;
(2). An independent and impartial tribunal;
(3). Free elections;
(4). Freedom of expression;
(5). Freedom of association/organisation and opposition;
(6). Citizenship education.1306
Meanwhile, Utrecht distinguishes between the State of Formal Law or the State of
Classical Law, and the State of Material Law or the State of Modern Law. Formal rule of law
concerns the formal and narrow definition of law, namely in the sense of written laws and
regulations. While the second, namely the State of Material Law, which is more recent,
includes the notion of justice in it.1307 Therefore, Wolfgang Friedman in his book "Law in a
Changing Society" distinguishes between 'rule of law' in a formal sense, namely in the sense
of 'organised public power', and 'rule of law' in a material sense, namely 'the rule of just law'.
This distinction is intended to emphasise that in the conception of the rule of law, justice will
not necessarily be realised substantively, especially since scholars' understanding of the law
itself can be influenced by both the formal legal understanding stream and the material legal
school of thought.
The relationship between democracy and the rule of law are two mutually correlated
conceptions, they cannot be separated. On the one hand, democracy provides the basis and
mechanism of power based on the principle of equality and human equality, on the other hand
the rule of law provides a benchmark that those who govern in a country are not humans, but
the law.1308Therefore, the applicable laws and regulations may not be unilaterally stipulated
by and or only for the interests of the authorities. Law was not created only to guarantee the
interests of a few people in power, but to guarantee the interests of justice for everyone so
that the developed state of law is not absolute rechtsstaat, but democratische rachtstaat.
1305 Miriam Budiardjo, Dasar-Dasar Ilmu Politik, (Jakarta: PT Gramedia Pustaka Utama, 2006).
1306 Ibid. 234.
1307 Utrecht, Pengantar Hukum Administrasi Negara Indonesia, (Jakarta: Ichtiar, 1962).
1308 Muntoha, Demokrasi dan Negara Hukum, Journal of Law Nomber 3 Volume 16 faculty of Law, Universitas
Islam Indonesia Yogyakarta, July 2009, pp. 379-395.
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Looking at the trend of the development of a modern state of law, according to Jimly
Asshiddiqie, there are twelve main principles as the main pillars that support the
establishment of a state of law. The twelve principles are:1309
(1). The Supremacy of Law;
(2). Equality before the Law;
(3). Legality Principle (Due Process of Law);
(4). Litation of Power;
(5). Independent Mixed Organs;
(6). Free and Impartial Judiciary;
(7). State Administrative Court;
(8). Constitutional Court (Constitutional Court);
(9). Protection of Human Rights;
(10). It is democratic; (Democratische Rechtsstaat);
(11). Functioning as a Means of Realising the Goals of the State; (Welfare Rechtsstaat)
(12). Transparency and Social Control.
The development of the principles of the rule of law is influenced by the increasingly
strong acceptance of people's sovereignty and democracy in the life of the state replacing
traditional state models.1310 The principles of the rule of law (nomocratie) and the principles
of popular sovereignty (democratie) are implemented side by side as two sides of one coin.
This notion of a state of law is known as a democratic legal state (democratische rechtsstaat)
or in a constitutional form it is called constitutional democracy. The principles of the rule of
law (nomocratie) and the principles of popular sovereignty (democratie) are implemented
side by side as two sides of one coin. This notion of a state of law is known as a democratic
legal state (democratische rechtsstaat) or, in a constitutional form, it is called constitutional
democracy.
3.2 Theory of Human Rights
Natural rights are moral standards that specify how individuals should be treated. Ideally,
societal laws will articulate and protect these natural rights. Having defined natural rights, it
should be noted that the most common examples of natural rights are the rights to life, liberty,
and property. People have natural rights simply by virtue of being human; such rights do not
depend on any social class, gender, race, or other contingent feature of the person. In practice,
what do natural rights mean? Natural rights ultimately mean that people can make a public
claim about being treated below their dignity as humans. Making such claims can lead to
changing practices in the enforcement of laws, the creation of new laws, or even
constitutional reform. Note that natural rights are distinct from civil rights insofar as the
former comes from nature while the latter comes from the state. However, the idea of natural
rights often shapes and guides the understanding and creation of civil rights. Generally,
governments are not recognised as having the authority to remove, suspend, or infringe on
natural rights. Any discussion of natural rights' meaning will distinguish natural rights from
other kinds of rights. The following terms are often used in taxonomies of rights:1311
1309 Jimly Asshiddiqie, 2006, Menuju Negara Hukum Demokratis, Jakarta: the Constitutional Court of the
Republic of Indonesia, p. 243.
1310 G. Lowell Field, 1951, Governments in Modern Society (New York-Toronoto-London; McGraw-Hill Book
Company, Inc.
1311 Dominika, Siniarska, 2017, Protecting the Right to Freedom of Expression Under the European Convention
on Human Right, A handbook for legal practitioners. p 23. Council of Eroupe, July 2017.
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(1). Civil rights are a specific kind of legal right that aims to secure the equality of all
citizens within a country. Securing equal employment opportunities, for instance,
is the purpose of a civil right. One country need not secure this right for citizens
of other countries.
(2). Legal rights are those that are instituted within a legal framework. Legal rights
can reflect human rights, civil rights, and natural rights.
(3). Human rights are a subtype of natural rights, often used interchangeably. One
point of difference is that natural rights can be used to include both human rights
and animal rights, assuming that one believes that animals have certain,
inalienable rights.
The first major proponent of natural rights was John Locke.1312 He famously claimed
that all human individuals have a right to life, liberty, and property. No sovereign, moreover,
could legitimately infringe on those rights. For Locke, the preservation of individual rights is
one of the driving reasons for entering into the social contract. Social contract theorists
argued that obeying laws is justified and motivated by an agreement by all members of
society. More specifically, all members of a society agree to give up some of their powers of
discretion and their natural independence to be members of an organised society. By entering
into civil society, individuals can expect to have their rights respected, and consequently, they
can expect a more stable life than if they lived without a government.
3.2.1 Positivist Theory
Under positivist theory, the source of human rights is found only in the enactments of a
system of law with sanctions attached to it. Views on what the law "ought" to be have no
place in law and are cognitively worthless. The theme that haunts positivist exponents is the
need to distinguish with maximum clarity law as it is from law as it ought to be, and they
condemned natural law thinkers because they had blurred this vital distinction. In its essence,
positivism negates the moral philosophic basis of human rights by divorcing a legal system
from the ethical and moral foundations of society, positive law encourages the belief that the
law must be obeyed, no matter how immoral it may be, or however it disregards the world of
the individual.
3.2.2 Cultural Relativism
The clash between those who evaluate human rights from the perspective of cultural
relativism and those who view human rights from the universalist or individualist perspective
impacts the moral foundations of human rights. This clash immerses one in the vortex of
contemporary human rights politics. Cultural relativism, as a concept to justify departure
from human rights standards in international law on cultural grounds, has scant claim to
moral validity. Still, because cultural relativism has been given the trappings of philosophic
credentials even in UN circles, it must be addressed. What are the sources of cultural
relativism? Is it a philosophy at all? How should one analyse cultural relativism in the context
of international human rights?
1312 Laurence Houlgate, 2016, John Loc on Naturalization and Natural Law: Community and Property in the
State of Nature, Citizenship and Immigration, Border, Migration and Political Membership in a Global Age.
Pp.123-136.
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3.2.3 Marxist Theory1313
Marxist theory, like natural law, is also concerned with the nature of human beings. However,
in Marxism, the view of men and women is not one of autonomous individuals with rights
developed from either a divine or inherent nature, but of men and women as "specie beings."
While Marxism fell along with the fall of Communism in Eastern Europe, it was dominant
philosophy in much of the world for many years; in variant forms, Marxism has residual
influence, particularly in assigning values to social and economic rights. Marx regarded the
law of nature approach to human rights as idealistic and ahistorical. He saw nothing natural
or inalienable about human rights. In a society in which capitalists monopolise the means of
production, Marx regarded the notion of individual rights as a bourgeois illusion. Concepts
such as law, justice, morality, democracy, freedom, etc., were considered historical
categories, whose content was determined by the material conditions and the social
circumstances of a people. As the conditions of life change, so the content of notions and
ideas may change.
3.3 Theory of Islamic Law
Islamic law in Western literature is translated using the terms "Islamic Law" and "Islamic
Jurisprudence", for example J.N.D Anderson named his book "Islamic Law in the Modern
World”, NJ. Coulson mentions names in the titles of his works: “A History of Islamic Law”
and “Conflict and Tensio in Islamic Jurisprudence”. J. Schach named his intellectual works,
"A Introduction to Islamic Law" and "Origins of Muhammadan Juripudence”, Zagday named
his scientific book: "Modern Trends in Islamic Law".1314
Understanding Islamic law is a system of rules based on the revelation of Allah SWT
and the Sunnah of the Prophet regarding the behavior of Mukallaf (people who can already be
burdened with obligations) that are recognised and believed, which are binding on all
adherents. And this refers to what the Apostle has done to carry it out totally. Shari'a
according to the term means the laws ordered by Allah SWT for His people brought by a
Prophet, both those related to belief (Aqidah) and those related to amaliyah (working).1315
Islamic law is not just a theory but also a rule to be applied in the joints of human life.
Because many problems are encountered, generally in the field of religion, which often
makes Muslims think that they tend to be different. For this reason, sources of Islamic law are
needed as a solution, namely as follows:
$O 4XU¶DQ
The first source of Islamic law is the Al-Quran, a Muslim holy book that was revealed to the
last prophet, namely the Prophet Muhammad through the Angel Gabriel. Al-Quran contains
contents that contain commands, prohibitions, suggestions, Islamic stories, provisions,
wisdom and so on. The Qur'an explains in detail how humans should live their lives in order
to create a society with noble character. Therefore, the verses of the Qur'an become the main
basis for establishing a Shari'a.
1313 Cyril Smith, Marx and The Future of the Human, on the Marxist Internet Archive website by Chris Gilligan
(March 2022). pp.3.
1314 Ibnu Rochman, Hukum Islam “Analisis dari Sudut Pandang Filsafat”, Journal of Filsafat February 1996. p.
59.
1315 Eva Iryani, Hukum Islam, Demokrasi dan Hak Asasi Manusia, Universitas Batanghari Jambi Vol.17 No.2,
year 2017. p. 24.
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3.3.2 Al Hadist
The second source of Islamic law is Al-Hadith, namely everything that is based on the
Prophet Muhammad. Both in the form of words, behavior, his silence. In Al-Hadith contained
rules that detail all the rules that are still global in the Qur'an. The word hadith which has
expanded its meaning so that it is synonymous with Sunnah, it can mean all the words
(words), deeds, provisions and approvals of the Prophet Muhammad which are made into
provisions or Islamic law.
3.3.3 Ijma'
The agreement of all mujtahid scholars at one time after the time of the Prophet on a matter in
religion. And the ijma' that can be accounted for is what happened at the time of the
companions, the Tabi'in (after the companions), and the Tabi'ut Tabi'in (after the Tabiin).
Because after their time the scholars have dispersed and there are many, and the disputes are
increasing, so it is not certain that all the scholars have agreed.
3.3.4 Qiyas1316
The fourth source of Islamic law after the Qur'an, Al-Hadith and Ijma' is Qiyas. Qiyas means
explaining something for which there is no textual evidence in the Qur'an or hadith by
comparing something similar to something that the law wants to know. This means that if a
text has shown the law regarding a case in Islam and it has been known through one method
to find out the legal problem, then there are 20 other cases that are the same as the case in
which the text is in one case, then the law of the case is the same. with the existing case law
texts.
Here are the laws in Islam: (1) Mandatory, is an action which if done will get reward
and if left will be punished. Examples of actions that have obligatory laws are praying five
times a day, wearing hijab for women, fasting, performing Hajj for those who can afford it,
respecting non-Muslims and many more. (2) Sunnah, is an act that is required by religion to
be done but the demands are not up to the level of obligatory or simply an act which if done
will get a reward and if left will not get torture or punishment. Examples of actions that have
sunnah law are prayers performed before/after fard prayers, reading the Prophet's prayers,
issuing alms and so on. (3) Haram (forbidden), is something that if done will definitely get
torture and if left will get reward. Examples of actions that have haram laws are committing
adultery, drinking alcohol, gambling, stealing, corruption and many more. (4) Makruh, is an
act that is felt if leaving it is better than doing it. Examples of this Makruh act are eating
onions, smoking and so on. (5) Mubah, is an act that is allowed by religion between doing it
or leaving it. Examples of Mubah are sports, running a business, breakfast and so on.
The sources of Islamic law are the Al-Quran and Al-Hadith. As laws and provisions
revealed by Allah SWT, Islamic law has set lofty goals that will safeguard human honour,
namely as follows:1317 (1) Maintenance of offspring. Islamic law forbids free sex and requires
sanctions for the perpetrators. This is to preserve and maintain the lineage. Thus, a child born
through the official way of marriage will get his rights according to the lineage of his father.
(2) Maintenance of reason. Islamic law forbids anything that can intoxicate and weaken
memory, such as liquor or alcohol and drugs. Islam encourages every Muslim to seek
knowledge and develop his thinking ability. If his mind is disturbed because of an alcoholic
party, his mind will be weak and his thinking activities will be disturbed. (3) Preservation of
1316 Misbahuddin Jamal, 2011, Konsep Al-Islam dalam Al-Qur’an” Jurnal Al-Ulum, Vol. 11 Nomor 2,
December 2011. p.307.
1317 Nurhayati, 2018 “Memahami Konsep Syariah, Fiqih, Hukum dan Ushul Fiqih, Journal of Hukum Ekonomi
Syariah, Volume 2 Nomor 2 July – December 2018. p. 132.
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glory. Islamic law forbids anything that can intoxicate and weaken memory, such as liquor or
alcohol and drugs. Islam encourages every Muslim to seek knowledge and develop his
thinking ability. If his mind is disturbed because of an alcoholic party, his mind will be weak
and his thinking activities will be disturbed. (4) Maintenance of property. Islamic law has set
sanctions for cases of theft by cutting off hands for the perpetrators. This is a very severe
sanction to prevent any temptation to violate other people's property. (5) Maintenance of
religion. Islamic law provides freedom for every human being to worship according to his
beliefs. Islam never forces anyone to embrace Islam. However, Islam has sanctions for every
Muslim who apostates so that other humans do not play with their religion.
IV. RESULT AND DISCUSSION
4.1 The Castration Punishment for Pedophillians from the Human Rights Perspective
Humans when born into the world have a set of rights attached to them. This right is a direct
gift from God and is therefore natural. Basically, there are two basic human rights. First,
Human Rights (HAM), namely human rights inherent in humans from birth. These rights
cannot be revoked, even reduced. These rights include the right to life, the right to freedom of
religion, the right to marry, the freedom to assemble and express opinions, and so on. Both
legal rights (legal rights) are rights that are specifically granted by law to the human person.
Because it is given by law, a person who receives the right must fulfill the provisions
stipulated by the legislation, on that basis, the right can be revoked at any time if there are
terms or conditions that are violated.1318 In addition to rights, humans must also carry out
their basic obligations. Basic human obligations become an important instrument in the
implementation of human rights protection. If we carry out our basic obligations as human
beings, then in fact we have implemented and enforced human rights. However, if we do not
carry out these obligations, then we have violated human rights. Human rights owned by a
person give rise to basic obligations and responsibilities to respect the human rights of others,
reciprocally and it is the duty of the government to respect, protect, uphold and promote
them.
In the context of castration law, of course, we must review whether the castration law is
included in the realm of human rights or legal rights. Indonesia itself applies chemical
castration. Several countries have also applied chemical castration punishment, such as the
Czech Republic, Ukraine, and the United States.1319 The law of castration aims to suppress a
person's sexual desire. Of course, this sexual desire has been intimate human since puberty.
So, actually, it cannot be reduced because sexual desire is a direct gift from God. However, if
we look back at the basic human obligations, of course, the perpetrators of child sexual abuse
are clearly not carrying out their basic obligations as humans.1320
The introduction of chemical castration into national law has sparked numerous human
rights controversies. These concerns originate from the invasiveness of the procedure, the
potential adverse side effects, and most notably, the lack of requirement for consent from the
offender. It must be underlined that chemical castration is not a mandatory measure. The
language of provision provides that chemical castration may be imposed, not that it must be
imposed. The determination of whether chemical castration is imposed lies with the court.
This aids in ensuring that the sentence is tailored to the offence and offender. However, while
the imposition of chemical castration is court-mandated and not automatically ordained by
1318http://nasional.kompas.com/read/2021/01/05/08513071/pp-kebiri-kimia-diyakini-bisa-jadi-efek-jera-dan-
kritik-soal-perlindungan, accessed on 01 October 2022.
1319https://tirto.id/daftar-negara-yang-menerapkan-hukum-kebiri-kimia-as-hingga-ceko-f8Qs, accessed on 03
October 2022.
1320 Ibid. 124.
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the regulation, the offender does not have the choice to reject the measure. In other words, the
offender has no choice but to accept the treatment. Although the offender can be informed of
the implications of the chemical castration, the offender has no right to reject it. This may
create issues with informed consent.
The right not to suffer cruel, inhuman, or degrading treatment is a non-derogable right.
This means that it is not subject to limitation in light of any exigency, even in states of
emergency. No justifications or extenuating circumstances can excuse violations of the right
not to suffer ill-treatment, including orders from authorities acting in an official capacity. For
this reason, scholars have dubbed this right ‘absolute.’ Innumerable bodies of work
pontificate on the importance of upholding the right to freedom from cruel, inhuman, or
degrading treatment. However, there is little discourse on how to resolve instances in which
the absolute right of one person conflicts with the absolute right of another. There is a gaping
vacuum in place of a balance between the right of the perpetrator and that of the victim not to
suffer cruel, inhuman, or degrading treatment. This article seeks to fill that gap by assessing
whether chemical castration constitutes cruel, inhuman, or degrading treatment and whether
such a violation can be excused according to the limitations of human rights.1321
The most echoed outcry of human rights concerns in the context of chemical castration
is that it constitutes cruel, inhuman, or degrading treatment. The right to freedom from cruel,
inhuman, or degrading treatment is enshrined in Article 7 of the International Covenant on
Civil and Political Rights, adapted into Indonesia’s national law through Law number 12 of
the year 2005. Indonesia’s ratification of this human rights instrument entails the legal
consequence of an obligation to respect, protect, and fulfil human rights. In this context,
Indonesia must respect, protect, and fulfil the right not to suffer cruel, inhuman, or degrading
treatment.1322
Although Indonesia has not ratified Optional Protocol number 2 of the International
Covenant on Civil and Political Rights, Indonesia has an obligation to uphold the Covenant.
This is because Indonesia has adopted the International Covenant on Civil and Political
Rights into national law through Law number 12 of the year 2005. The implication of this
law is Indonesia’s obligation to respect, protect, and fulfil the human rights enshrined in the
International Covenant on Civil and Political Rights.
The right not to suffer cruel, inhuman, or degrading treatment is also provided by Law
number 39 of the year 1999 and the Constitution of the Republic of Indonesia. However, the
International Covenant on Civil and Political Rights has a wider scope of application,
creating a broader range of responsibilities than the aforementioned laws. This means that the
International Covenant on Civil and Political Rights casts a wider net for human rights
protection than Law number 39 of the year 1999 and the Indonesian Constitution. This
underlines the significance of the International Covenant on Civil and Political Rights within
Indonesia’s human rights framework.
The application of chemical castration to perpetrators of child sexual abuse has brought
pros and cons in society. Some people consider that chemical castration is inhumane and
against human rights. On the other hand, castration can provide a deterrent effect for
perpetrators of sexual violence against children. In addition, the application of chemical
castration can also be expected as a tool to prevent sexual violence against children. President
Joko Widodo himself has issued Government Regulation (PP) Number 70 of 2020
concerning Procedures for Implementing Chemical Castration, Installation of Electronic
Detection Devices, Rehabilitation, and Announcement of the Identity of Perpetrators of
1321 Davison Gerald C Nekale, el., Psikologi Abnormal, (Jakarta: Rajawali Pers, 2006).
1322 Inter-Parliamentary Union & United Nations Office of the High Commissioner for Human Rights (2016).
Handbook for Parliamentarians N° 26. Geneva: Inter-Parliamentary Union & United Nations Office of the
High Commissioner for Human Rights), p. 31.
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Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward
Sexual Violence Against Children. Jokowi signed the regulation on 7 December 2020.1323
Article 1 paragraph 2 of PP Number 70 of 2020 explains that chemical castration is the
administration of chemical substances through injection or other methods, which are carried
out by perpetrators who have been convicted of committing violence or threats of violence by
forcing a child to have intercourse with him or with other people, resulting in more victims
than one person, causing serious injury, mental disorder, infectious disease, disruption or loss
of reproductive function, and/or the victim dies, to suppress excessive sexual desire, which is
accompanied by rehabilitation.
Basically, castration is contrary to human rights, but there are reasons to justify
castration in Indonesia, namely Law Number 17 of 2016 concerning Stipulation of
Government Regulations in Lieu of Law Number 1 of 2016 concerning the Second
Amendment to Law Number 23 of 2002 on Child Protection. In the law, it is regulated that
anyone who violates the provisions of Article 76D, 76E of Law Number 35 of 2014
concerning Child Protection can be subject to castration.
Then, in Article 81 jo and Article 82 of Law Number 1 of 2016 it is explained that
castration can be imposed on, first, perpetrators of criminal acts of obscene acts to children
who are parents, guardians, people who have family relationships, child caregivers,
educators, education personnel, officers who handle child protection, or carried out by more
than 1 person together. Second, perpetrators who have previously been convicted of
committing a crime of sexual intercourse with a child and/or a criminal act of obscene acts on
a child. Third, perpetrators of sexual intercourse with children and/or criminal acts of
obscenity to children that cause more than 1 victim, resulting in serious injuries, mental
disorders, infectious diseases, impaired or loss of the child's reproductive function, and/or the
victim dies.
It should be underlined, the phrase used in Law Number 1 of 2016 is "a person may be
subject to additional punishment in the form of chemical castration and installation of an
electronic detection device". The phrase used is "can", can itself is not the same as must, can
means facultative, which means it is optional. This means that a person may or may not be
subject to chemical castration. We can see this in PP No. 70 of 2020, chemical castration
must at least go through several stages, namely clinical assessment, conclusion, and
implementation. The clinical assessment itself aims to see whether a person is worthy or not
to be castrated, if it is feasible, it will be followed up with implementation, if it is not feasible
then castration is not given. That is the meaning of the word "can".
4.2 The Castration Punishment for Pedophillians from the Islamic Law Perspective
Castration punishment is not known in Islam because there is no mention of castration
punishment in the study of legal science that discusses the issue of criminality (jinayat). As
for the punishment for perpetrators of sexual abuse against children, there are sanctions in the
form of hadd or takzir for those who do it. Sexual relations in accordance with Islamic law
are through marriage. Acts of sexual deviation against children are equated with acts of rape
because they contain the same elements, namely coercion and even violence, physical and
psychological threats. Islamic Sharia has set penalties for perpetrators of sexual crimes
against children who commit acts of obscenity or rape in accordance with the details of the
facts of their actions, so it is not permissible/haram to implement non-sharia laws. Here is the
word of Allah SWT.
"And it is not proper for believing men and not (also) for believing women, when Allah
and His Messenger have determined a statute, there will be for them (other) choices regarding
1323 Ibid, 67.
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The Castration Punishment from Human Rights and Islamic Law Perspective
their affairs. And whoever disobeys Allah and His Messenger, he has indeed gone astray, a
clear misguidance." (Al-Ahzab: 36)
Based on the hadith from Ibn Mas'ud, it shows that the prohibition is indicated as
haram without any difference of opinion, because this act causes damage in the form of self-
torture in addition to the harm that sometimes causes death. This act also invalidates
masculinity, changes Allah's creation and denies favors, because the creation of a person as a
male is a great blessing. If someone eliminates it, then he resembles a woman and chooses
shortcomings.1324
In the medical world, castration is carried out in two ways, namely surgery and
chemical injections. Castration by surgery, namely the removal (amputation) of the testicles
as a place of production of the hormone testosterone. This method has been abandoned in the
modern world because it is considered against human rights. While the second way, by
injecting a chemical liquid that destroys sexual libido. Both models of castration equally
paralyse the function of the male vital organs in terms of sexuality. Castration punishment for
rapists has actually been implemented in several countries. In South Korea, for example. In
addition to serving confinement (prison), convicts of rape cases are also chemically castrated.
The same applies to the UK, Czech Republic, Poland, Sweden, Denmark, Germany, and
several states in the United States. In addition to countries that have implemented it, there are
also countries that are still discussing this type of castration punishment. Among them,
Turkey, India, and currently Indonesia. However, can this castration punishment be under
Islamic law? Considering that Indonesia has a Muslim majority population, of course, it is
necessary to examine this punishment from the perspective of the Shari'a. People who
sexually abuse children can be called Pedophillians. The definition of Pedophillians,
according to one opinion, is a psychosexual development disorder in which individuals have
abnormal erotic desires for children. Meanwhile, in another reference, pedophillians is a
disorder that involves the activities of children under the age of 13.1325
In fact, castration has been going on since ancient times. Victor T Cheney1326 confirms
that the practice of castration has been going on for a very long time, since ancient times.
There are various reasons for the practice of castration, ranging from religious reasons,
punishment for crimes, to vocal and social interests. Many of those who were castrated turned
out to be eunuchs or palace servants, even generals such as the famous sailor, Admiral Cheng
Ho, whose name was so respected in Indonesia in the 15th century AD. In Ancient Egypt,
Rasa Merneptah of Egypt made a monument at Karnak around 1225 BC, listing 13,000
people castrated. In ancient Greece and Persia, the practice of castration was written by the
Greek historian Herodotus (484-425 BC).1327 The castration punishment is actually a matter
of ijtihad because there is nothing regulated, ordered or prohibited in the texts of the Qur'an
and al-Sunnah. As a matter of ijtihad, the status of castration is a debate that creates
differences. There are at least two views, namely that which allows and which prohibits or
forbids.
Islamic law also recognises the principle of legality, which deals with the formal
elements of Islamic criminal law, which is one of the most important basic rules. The
principle of legality in Islamic criminal law (Fiqh Jinayah): It means: "There is no criminal
1324 Akmad Fatomi, Studi Komparatif Penetapan Sanksi Pidana Kebiri Dalam Perspektif Hukum Pidana Islam
dan Hak Asasi Manusia, Skripsi, Proram Studi Ilmu Hukum, Universitas Muhammadiyah Magelang. p. 8.
1325 Masrizal Khaidir, Penyimpangan Seks (Pedofilia), Jurnal Kesehatan Masyarakat, jpkesmasdd070010
(September, 2007), p. 84.
1326 Scott, C. L., & Holmberg, T. (2003). Castration of Sex Offenders: Prisoners’ Rights Versus Public.
1327 Abdul Qadir Audah, at-Tasyri’ al-Jina’i al-Islami, Juz I, p. 8.
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International Peace and Security: The Achievement of the United Nations and the Way Forward
act and there is no punishment for an action without any rules"1328or "there is no violation and
no punishment before there is a law that manages it”.1329 This principle is based on the Qur'an
Surah Al-Isra verse 15: which means: "Whoever gets the guidance of guidance (according to
the guidance of the Qur'an), then the real benefit of the guidance he finds is only returned to
himself, and whoever is astray guidance indeed the bad impression of his misguidance was
borne only by him as well. and someone who can bear it will not bear the sins of others (even
business sins). And we will not punish anyone before we send a message (to explain what is
right and what is wrong)". (Surat al-Isra [17]:15)1330
Basically, Pedophillians is categorised as a crime of decency which is considered very
sensitive because it involves issues of human honor. In fact, Islam strictly forbids all kinds of
acts of sexual perversion and all things that approach it. According to the word of Allah
SWT: "And do not approach adultery, verily, adultery is an abominable act and an evil way
(which brings corruption)." (Surat al-Isra [17]: 32).
The verse mentions the word fahisyah, which shows that adultery is a heinous thing.
When referring to Pedophillians acts whose sexual orientation is to satisfy abnormal desires
and are only interested in children, even though the act is still in the preliminary category of
adultery, for example mufakhadzah (insert penis between two thighs), or put it in the mouth,
or touch outside farji. These actions can lead to stimulation of adultery, which must be
punished.1331 Islamic criminal law, the dignity and rights of human life, all of the rights
attached to it have received maximum attention and this can be read, for example, in the
Decision of the Alim Ulama National Deliberation Number: 003/Munas/11/1997 concerning
Al-Huquq Al-Insaniyah Fil Islam (Human Rights in Islam), that "Islam is a teaching that
places humans in a very high position. Even the Qur'an guarantees the right to glorify and
prioritise human beings.1332 There are also scholars who say that castration is forbidden, and
there are also those who allow it, and as the human rights view responds to this, castration, as
we know, eliminates human lust, even at certain times the egg cells inside the man do not
function. As normal as usual, we all know that in the written law the right to have offspring
for every citizen, it will be very contradictory if this castration punishment is carried out.
V. CONCLUSION
Based on the discussion above, the writer concludes that the chemical castration punishment
according to Islamic law is categorised as a punishment that has a minimum and maximum
limit determined by the judge, so it can be classified as a ta'zir punishment. The judge has the
right to impose chemical castration if the defendant is proven to have committed a violation
categorised or determined in the applicable law. In Islamic criminal law the determination of
punishment by judges on the minimum and maximum levels can be categorised as ta'zir
punishment because the type of punishment is not yet in the texts and the judge has the right
to impose castration sanctions and determine the minimum and maximum levels. Castration
punishment is an additional or aggravating punishment after the main sentence handed down
to perpetrators of crimes of rape or other serious and sadistic acts of sexual violence.
Although it is not contained in the Qur'an and the Prophet's Hadith, castration can be
accepted in Islamic law as a form of empirical ijtihad in an effort to prevent the occurrence of
violent levels of violence and sexual crimes, especially in Indonesia. If the level of sexual
1328 Abdul Wahid, Muhammad Irfan, 2011, Perlindungan Terhadap Korban Kekerasan Seksual Advokasi atas
Hak Asasi Perempuan, (Bandung: PT Refika Aditama).
1329 Ibid. 70.
1330 Sufyan Ilyas, 2019, Sanksi Kebiri Dalam Perspektif Hukum Islam Dan Hukum Pidana Indonesia, Program
Studi Ahwal Syakhsiyyah Pascasarjana IAIN Bengkulu. p. 26.
1331 Hakim, Rahmat. Hukum Pidana Islam “Fiqh Jinayah”, (Bandung: CV. Pustaka Setia, 2000).
1332 Ibid. 89.
324
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