We argued last week that, contrary to the situation in most Muslim countries, Islam supports the equal treatment of both parents in passing on their nationality to their children. The law in most Muslim countries gives this right to fathers but not to mothers. We quoted several verses from the Qur’an and a basic Hadith in support of our view, and we promised to cast a brief look at the Fiqh rules stated in the preamble to Majallat Al-Ahkam Al-Adliyah, the civil law formulated at the end of the Ottoman Caliphate based on the Hanafi school of law.
The first of these rules, which is No. 52 in the Majallah, states: "If an original ruling becomes inoperative, an alternative is put in place." This rules that every situation has an original ruling derived directly from Islamic texts or through ijtihad, or scholarly effort. If it is impossible to enforce this ruling for any reason, then a scholar or a judge is required to find an alternative ruling to implement in its place. The scholar should issue a verdict or fatwa for implementing this alternative ruling instead of the original one where it is inoperative.
If we apply this to the question of nationality, the original ruling is that nationality is passed from a father to his children. If this is impossible, either because the father is unknown, or stateless, or his nationality is unknown, then we must have an alternative which, in this case, should give the children their mother’s nationality. Only in this way can the children in this case acquire their legal status, which is absolutely essential for everyone. Indeed the legal status of everyone is derived from his or her nationality.
The second rule applicable in this case is No. 20 in the Majallah, which states: "Necessities overrule prohibitions." The meaning of this rule is very clear. Its relevance to the point under discussion is that if we recognize that a child whose father is of unknown nationality, or himself unknown or stateless, is in a position of necessity that requires giving that child its mother’s nationality. Hence, in practice, we must remove the present restrictions on passing nationality from mother to child. Otherwise, we would be recognizing a necessity without operating its relevant rules.
Operating the rule of necessity to permit what is originally not permissible is well-established in Islamic law. Hence, scholars have complemented this rule with several supplementary rules such as, "harm must be removed", and "harm must be prevented as far as possible." These two rules require the Muslim community and every individual in the community to work for the prevention and removal of any harm inflicted on others. There is no doubt that the harm caused to children of a woman citizen as a result of being denied her nationality while they do not have their father’s nationality is considerable, whether they live with her in her country or outside it. As a result, they are deprived of many human rights, such as the right of movement, education, ownership, work and all political rights. These rules make the granting of nationality to the children of a woman citizen an automatic right, in the same way as it is granted to a man’s children.
Some people may object that this could lead in some cases to dual nationality, which is undesirable. But this objection is invalid for several reasons: The laws in most Muslim countries allow dual nationality. Hence, the case of any children having dual nationality as a result of treating parents equally in this respect should be dealt with according to the provisions governing dual nationality.
It is possible to incorporate a provision allowing a child to choose the nationality of either parent, or a different nationality available to that child, within a specified period after reaching a certain age.
The Fiqh rule which regulates dealing with several negative results specifies: "When two ills are in conflict, the less harmful is committed." (Rule 27 of the Majallah) When more than one type of harm are possible, Rule 28 of the Majallah states, "The lesser harm is chosen", or "The lesser evil is preferred." The objectors maintain that having dual nationality is bad. To this we reply that such evil or harm is infinitely less than the harm and evil that result from depriving the children of nationality. Therefore, to enforce these rules we should grant such children their mother’s nationality without consideration to the possibility of their having dual nationality. Alternatively, we may devise appropriate solutions for the problem of dual nationality, as already provided in national laws, or for preventing the harm that results from depriving the children of a woman citizen of her nationality.
The third rule, which is No. 31 of the Majallah, states that "A need is treated like a necessity, be it universal or special." The import of this rule is that exemption from an original ruling, in any area, is not restricted to cases of necessity only. Exemption may be operative in cases of need also. A need is less important than a necessity and has a lesser effect on a person’s life. A person who is nearly dying of starvation is in a situation of necessity, while one who is extremely hungry is in a situation of need. According to this rule, Islamic law equates situations of need with those of necessity. Likewise, Islamic Fiqh treats equally a universal necessity felt by the whole community or by a large section of it and a particular necessity applicable to a few people or to an individual.
This means that when a child of a woman citizen is in need of obtaining her nationality to be able to conduct his affairs in her country or elsewhere, and when such need cannot be met without allowing her to pass on her nationality to him at birth, any law that prevents this is deemed contrary to this rule. Indeed such a law also violates the rule which states: "Hardship opens the way to relaxation", and its corollary: "When a situation is too restricted, relaxation operates." (Rule 18 of the Majallah)
The children of a woman citizen who are not allowed to have her nationality while they are at the same time deprived, for any reason, of their father’s nationality endure great hardships in their personal and social life. They find themselves unable to exercise many of their natural rights in their own country. This puts them under numerous restrictions. Hence, it is imperative to operate these two rules to facilitate their situation and remove their restrictions.
There is no doubt, then, that the practical situation in which the children of citizen mothers and non-citizen fathers confirms the presence of a universal need which acquires the status of a necessity and has a bearing on legal rulings. In fact, this situation confirms the presence of hardship which opens the way for relaxation, and the presence of restrictions that need to be removed or relaxed. All this calls for treating men and women on equal basis in respect of passing their nationality to their children at birth.
The fourth rule carries No. 80 in the Majallah and states: "A ruling may be applicable in the case of an offspring but not its parent, and an offspring may have more than its parent." This is only one half of the rule, which is stated in the Majallah, while its other half is found in the Hanafi Fiqh, which is the basis of the Majallah.
What this rule indicates is that it is not necessary that the rulings or the privileges applicable to an offspring need not be identical to, or derived directly from those applicable to its parent. The effect of this rule on the question we are considering derives from the fact that a non-citizen husband does not automatically qualify for nationality on the basis of his marriage. Those who object to passing a mother’s nationality to her children by a non-citizen husband argue that it is improper to pass the nationality from a mother to a child when it is only born because of her marriage to a man who does not qualify for nationality. How could he, then, be the cause of passing such nationality from his wife to his children?
This Fiqh rule makes it clear that it is not necessary for granting nationality to a child that this nationality should be available to its father. According to this rule, a ruling could apply to an offspring without being applicable to its parent. Thus, the mother’s nationality may be granted to her child without being granted to the father. In this case, the offspring has more than the parent, which is the right to nationality.
We may also answer this objection by saying that both parents stand in the same degree in relation to their child. To deprive either of them from the right to pass on their nationality to their children is to contradict the principle of equality between them. It gives one of them privileges that are not applicable to the other, when they are partners in their parenthood of that child.
When we advocate that a child is entitled to have its mother’s nationality, we are only treating both parents as equal in this respect. To advocate a different treatment is contrary to the principle of their equality in respect of their children’s affairs as confirmed by the Qur’anic verse that makes the settlement of such affairs "by mutual consent and after due consultation" between the parents. This fact disproves this whole argument and makes it imperative that a child’s right to its mother’s nationality is the same as its right to that of its father.
We will look at other rules that have bearing on this question next week, God willing.
