We have been discussing the problem faced by women in Muslim countries who marry foreigners and find themselves unable to pass their nationality on to their own children, because nationality laws in many Muslim countries restrict the automatic passing of nationalities to fathers only. If a child is unable for any reason to obtain his father’s nationality, and is not entitled to have his mother’s nationality, such a child finds itself stateless. We have shown how Fiqh rules established by Majallat Al-Ahkam Aal-Adliyah, the civil code published by the Ottoman Caliphate at the end of the 19th century, and which are still operative in many Muslim countries make it clear that no such distinction is valid. We continue with explaining how other rules apply in this case.
The fifth rule, No. 48 in the Majallat states: “Whoever is the owner of something becomes the owner of what is necessary to it.” The applicability of this rule to the question in hand is based on the fact that the law gives the children of a woman married to a foreigner the right of residence in the country with their mother. But then they are not treated like citizens of the country with regard to rights of education, work, ownership and travel. All these rights apply to nationals on the basis of their being nationals. Moreover, these rights are necessary to life, not luxuries. Since a woman’s child is entitled to the right of residence in her home country, such child should also be entitled to the “necessities” of such residence, which are the rights we have just mentioned.
To deprive such children of these rights results in contradiction. Hence, this Fiqh rule aims to ensure harmony between legal rulings, endorsing the results of the exercise of any right and approving what is necessary for such exercise. Hence, if a person entitled to residence in a country cannot have the rights of citizenship without granting him its nationality, then such grant must be given.
This is further endorsed by another rule which states: “Means may be opened just like they are closed”. A “means” here refers to any rout leading to a result, whether good or bad. So, a means to a bad thing must be closed or removed. This is the basis of a well-known principle in Islamic criminal law and in the code of permissibility and prohibition, called sadd al-thara’ie. If it is a means to something good, then it must be opened and made easy to access. If we relate this rule to the one stated above, i.e. “whoever is the owner of something becomes the owner of what is necessary to it,” we conclude that the means to granting the children of a citizen mother by a non-citizen father the rights associated with the right of residence, i.e. giving them her nationality, must be opened.
The sixth rule carries No. 9 in the Majallat, and states: “Legal permissibility is contrary to liability.” This means that when a person does something that the law allows, then that person may not be liable to any adverse effects as a result of doing it.
This rule is relevant to our question in the sense that it answers those who blame a woman citizen for marrying a foreigner. Such people may say that since the woman has chosen to marry a non-citizen, she should find a solution to the problem of her children’s nationality outside the operation of national laws. She must not add to the national burden by increasing the country’s population with children of a non-national father.
This argument is answered by this last rule. A woman citizen may not be blamed for marrying a non-national. There is nothing in Islamic or national law which requires a woman to always marry a national. Therefore, she may not be required to bear a burden which the law does not place on her.
Since Fiqh rules and the principles of Islamic law provide for equal status of men and women with regard to their rights to pass own their nationality to their children, why do we give a man who marries a foreigner the right to pass on his nationality to his children at birth and deny the same right to a woman? Such discrimination is tantamount to an indirect or subtle punishment enforced on a woman citizen for her marriage to a foreigner. It creates a situation which is both untenable and unlawful. Hence, the lawmakers in Muslim countries must take the initiative to reform this situation and remedy its practical effects.
The seventh rule that applies here is No. 57 in the Majallat, which states: “Actions to apply to the public are conditional to serving their interests.” This means that whatever laws and regulations enacted by the state may not be applicable and valid unless they are geared to serving public interests. This echoes the principle of legitimacy in modern administrative law. It presupposes that any regulation or administrative order must serve the interests of the public, making this objective one of the basic elements of all regulations. A court of law will rule that a regulation that does not meet such a basic element is invalid.
A legal principle applies only to regulations, but a Fiqh rule is wider in scope and applies to other instruments by which the government seeks to apply its authority to individuals. Hence, it applies to all laws, regulations and orders, common or private, local or national.
It has been established above and in much of what has been written on this subject that the legal provisions which deprive a woman citizen’s children of their right to have her nationality do not aim to serve any interest, public or private. In fact, they cause net harm to the mother and her children.
Islamic law makes it clear that a government’s jurisdiction over what is permissible is limited to what serves the public interest, because government is required to safeguard the interests of the people. Therefore, when a government uses its authority in a permissible matter to ensure a particular interest, then such usage is valid and enforceable. It also requires people to obey what the government orders or prohibits. By contrast, when the use by a government of its authority leads to harm or does not serve a clear interest, then it is invalid, because it is either harmful or superfluous. In either case, it is invalid.
All modern legal systems make it clear that the legislator may not resort to what is harmful or superfluous. On the contrary, the legislator must always aim to bring benefit to people and prevent harm. Hence, all provisions which discriminate between men and women citizens in their rights to pass their nationality to their children, which serve no interest whatsoever, must be annulled. Legal scholarship in our times must be directed toward ensuring the equality of men and women in their rights concerning this question.
