Submission to the Joint Constitutional Review Committee from Aljama concerning recognition for Muslim personal and family law

LEGAL SERVICES: ADV F S JENKINS, PARLIAMENT

MEMORANDUM

TO: Chairperson, Joint Constitutional Review Committee [Hon Mr S D Montsitsi MP]

FROM: Parliamentary Legal Services [Adv F S Jenkins, Parliamentary Legal Adviser]

LEGAL SERVICES: PARLIAMENT

MEMORANDUM

TO: Chairperson, Joint Constitutional Review Committee [Hon Mr S D Montsitsi MP]

FROM: Parliamentary Legal Services [Adv F S Jenkins, Parliamentary Legal Adviser]

DATE: 15 August 2008

SUBJECT: Submission to the Joint Constitutional Review Committee from Aljama concerning recognition for Muslim personal and family law

1. Aljama, a registered political party, submits that section 15(3) of the Constitution should be reviewed to allow legislation providing for Shariah compliant marriages and personal law.

2. Section 15 of the Constitution provides for freedom of religion, belief and opinion. Subsection (3)(a) specifically provides that the .section does not prevent legislation recognising marriages concluded under any tradition, or system of religious, personal or family law; or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.” Aljama’s specific issue is with subsection (3)(b) which requires the said legislation to be consistent with the rest of the section and other provisions of the Constitution.

3. As indicated in the submission, the South Africa Law Commission has reported on this matter. However, it appears from the submission that the process of legislating based on the report was resisted by the Muslim community as there were concerns that the said Bill would be amended .under the guise that it has to comply with the Equality Laws of the Constitution:

4. Allowance for legislation that falls outside the provisions of the Constitution requires a constitutional amendment. In other words, the Constitution itself would have to contain such a provision.

5. Whether to amend the Constitution to make provision for the Shariah compliant legislation relating to family and personal law without having to comply with other provisions of the Constitution is a matter of policy.

6. Aljama also requests that the Committee establish a statutory commission of enquiry and consider holding a referendum amongst Muslims testing their resolve to have Shariah compliant marriages and to invite Aljama to make oral submissions.

7. The Joint Constitutional review Committee may invite any person to make an oral submission, but the Constitution or the Joint Rules do not authorise the Committee to establish a statutory commission of enquiry or to hold a referendum.

Adv F S Jenkins: Parliamentary Legal Adviser