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Title:Should the question: 'what is in a child's best interest?' be judged according to the child's own cultural and religious perspectives? The case of the Muslim child
Author:Vahed, M.A.ISNI
Year:1999
Periodical:The Comparative and International Law Journal of Southern Africa
Volume:32
Issue:3
Pages:364-375
Language:English
Geographic term:South Africa
Subjects:customary law
children's rights
Islamic law
family law
law
Abstract:The South African Law Commission's first issue paper (1998) on the review of the Child Care Act also focuses on the common law, customary law and religious laws relating to children in South Africa and underscores the tension between Muslim personal law (MPL) and other systems of law. Thus the approach requiring the Muslim child's rights to be judged in terms of international and South African law on the one hand, but to be honoured in terms of Islamic law on the other hand, is clearly problematic. The present author examines MPL relevant to children to illustrate that it is in the Muslim child's best interests if its rights are judged in terms of its own cultural and religious perspectives. He pays attention to conflicts created by the difference in age of majority in Islamic law (Shari'ah) and South African law, and to the tension between the South African and Shari'ah laws of succession. He also considers two questions posed in the issue paper, namely what aspects of MPL need to be reformed in order to accord with constitutional and international perspectives, and should MPL be codified or should the fundamental principles underpinning a new children's statute be made compatible with MPL affecting children. He suggests that a committee of Muslim experts should be established to look into the question of MPL reform, and that the proposed children's statute should be submitted to the Muslim community. With regard to the second question, he argues that no authoritative codification of the revealed law in any language is permissible, and that there is a distinct need for the State to show an awareness that legislation regulating important aspects of social life, like children's rights, be sufficiently flexible to accommodate Islamic law. Notes, ref.
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