Islamic family law in Thailand only covers certain areas. This is an overview of the application of Islamic law in the four provinces of Thailand. Likewise highlighting the role of Dato Yuttitham, who serves as a special Islamic law judge. Through this page, we aim to provide a comprehensive understanding of the application of Islamic law in Thailand’s four provinces and the crucial role played by Dato Yuttitham in this context. Likewise see also Thai family law.
Note that the deployment of Islamic law judges to Provincial Courts signifies an effort to handle Islamic legal matters within the existing judicial structure, ensuring that Islamic legal principles are considered alongside civil law in cases involving Muslim individuals. This approach helps maintain legal cohesion and uniformity throughout the country. See also Islamic Marriage as well as Talaq as well.
The development of the application of Islamic law in Thai Courts has its roots in the modernization period of Thailand. Likewise, which occurred from the late 19th century to the early 20th century. During this period, significant changes were taking place in the Malay Peninsula. This where various Malay sultanates and cities existed. Many of these sultanates eventually came under the British protectorate. Likewise, forming what is now Malaysia. However, in contrast, certain Malay Sultanates in the northern Malay Peninsula remained under the control of Thailand. This included Pattani, among others.
The impetus for these changes was partly a response to the mounting pressures from colonial powers. This from such powers as the United Kingdom and France. Thailand embarked on a modernization policy in the 19th century, which involved the direct governance of peripheral areas. This policy aimed to transform Thailand into a Western-style territorial state with a centralized administration.
As a part of this modernization process. The legal framework within these territories was also reformed and adapted.
This included the incorporation of Islamic legal principles. This to accommodate the legal needs and traditions of the Muslim population residing in these areas. The incorporation of Islamic law into the Thai legal system was a significant step. This in recognizing and addressing the diversity of cultures and religions within the country.
In the southern border area of Thailand. Significant changes were initiated during the reign of King Chulalongkorn. In 1901, King Chulalongkorn promulgated a decree that introduced a new governing system for the region. This decree had far-reaching consequences. This as it abolished the Sultanates in seven Malay states, including Pattani. Then replaced them with new Thai political institutions.
In response to these changes, there was resistance from some quarters. In 1902, the Raja of Pattani led a revolt against Thailand’s new governmental policy. But it was ultimately brought under control. These early movements of resistance were primarily led by the Sultans, aristocracy, and religious leaders in the region. However, after the failure of the revolt in 1922, these movements lost momentum and gradually receded.
Thailand’s territorial sovereignty over this southern border area was internationally recognized. This through treaties between Thailand (then known as Siam) and the United Kingdom. One of these treaties, the 1826 treaty with the United Kingdom (known as the Burney Treaty). This defined the boundary between Thailand and the British Malay States. According to this agreement. The three Sultanates—Kedah, Kelantan, and Terengganu—were recognized as belonging to Thailand.
Subsequently, in the 1906 treaty. Thailand ceded these Sultanate states to the United Kingdom in exchange for the region of Satun. Which today is now part of Satun province. These historical treaties and territorial exchanges. These played a crucial role in shaping the political landscape of the southern border area. Likewise the relationship between Thailand and her neighboring countries.
In 1934/5 Thailand started what we know today as the Civil and Commercial Code. The drafters knew that there may be issues with the parts on inheritance as well as family law. They did not want a conflict with the family and inheritance for Muslims described in the Royal Decree of 1901. So they added a clause to the then Promulgating the Civil Procedure Code 1935.
The clause was in Section 3 of the Act and read “If there is any law, under which custom or religious law shall be applied in any court, the court shall apply such custom or religious law instead of this Code, except for that the parties to the dispute have agreed to the application of this Code”. This issue made a return in the late 1990’s.
After the end of WWII, the first Islamic statues entered. They had been the Royal Decree on the Patronage of Muslims 1946. The Act on the Application of Islamic Law in the Area of Pattani, Naratiwat, Yala, and Satun Provinces (hereinafter called Act on the Application of Islamic Law) (1946) as well as the statue called the Islamic Masjid Act 1947.
The Royal Decree stated, “The Constitution of the King of Thailand provides that the King is the Guardian of the religions, and Thai people have full freedom of religion.” This was very similar to the 1932 Constitution of Thailand. This decree established the Central Islam Commission and the Provincial Islam Commission.
The Act on the Application of Islamic Law. Empowered Dato Yutitham to decide the Islamic Law cases and enabled it to apply Islamic law. This instead of provisions of the Civil and Commercial Code. This was however not binding.
Likewise, the Act on Islam Masjid introduced the registration system for Masjid. Likewise it required the approval of the Provincial Islam Commissions in appointing an Imam.
Next came a coup in 1947. In 1948, the Royal Decree on Islamic Patronage was amended. Later, Sarit Tanarat took power and replaced Pibun in a coup in 1957. Each coup brought changes. There are seventeen written Thai Constitutions between 1932 and 2016. There had only been changes in the 1990s after the Asian Financial crisis.
The Act on Administration of the Islam Organization of 1997 brought significant changes to the regulation of Islamic organizations in Thailand. This act replaced the Masjid Act of 1947 and the Decree on the Protection of Islam of 1945 (amended in 1947), streamlining the provisions related to Islamic organizations.
The basic structure of the Islamic organization remained intact, with the Chularachamontori, the leader of Islam, at the top. The organization consisted of three levels of commissions: the Central Islam Commission, Provincial Islam Commissions, and Masjid Islam Commissions. The Act provided detailed information on the organization and functions of these commissions.
One notable addition to the Act was the inclusion of procedures for the registration of Masjids (mosques). Additionally, the Act officially assigned dispute resolution functions to both the Central Islam Commission and the Provincial Islam Commission. The details of these dispute resolution mechanisms were outlined in the Act, and they were intended to address issues and conflicts within the Islamic community.
The Thai business sector has shown a growing interest in developing business opportunities within the Muslim community, both within Thailand and internationally. One notable example is Krungthai Bank, a state-owned commercial bank. Likewise, which became the first commercial bank in Thailand to offer Islamic banking services. This move was significant in catering to the financial needs and preferences of the Muslim population.
To facilitate Islamic banking services and promote the growth of Islamic finance in Thailand, the government passed the Islamic Bank Act of 2002. This act established the Islamic Bank as a special governmental bank with a specific focus on Islamic financial services. The creation of the Islamic Bank was a crucial step in providing Sharia-compliant banking and investment options to the Muslim community and supporting the broader development of Islamic finance in Thailand.
In 2003, the Islamic Bank of Thailand started its operations. Within two years, by the end of 2005, it had nine branches. During that time, the bank acquired Shariah Banking Services from Krung Thai Bank PCL in November 2005.
However, there were concerns about the management of state-run financial institutions like the Islamic Bank. Critics pointed out that the Finance Ministry had to inject almost 20 billion baht into iBank to increase its registered capital. This intervention was necessary because iBank had 50 billion baht in non-performing loans (NPL), which accounted for half of its total loan portfolio.
The Act on the Application of Islamic Law of 1949, which consists of seven sections, plays a crucial role in governing certain legal matters related to family and Islamic inheritance in specific provinces of Thailand. Section 3 of this act outlines the key provision:
The application of Islamic Law in the specified provinces of Thailand, as outlined in Section 3 of the Act on the Application of Islamic Law of 1949, is contingent upon three essential requirements:
Subject Matter: The case in question must pertain to family matters or Islamic inheritance. It’s important to note that Islamic inheritance may encompass a broader scope than what is defined in the Civil and Commercial Code.
Muslim Involvement: The application of Islamic Law is applicable when all the following conditions are met:
Exception for Inheritance Limitation: While Islamic Law is applied to family and inheritance matters, an exception exists for the provisions related to the limitation of inheritance. These specific provisions remain subject to the Civil and Commercial Code, irrespective of the cause of action occurring before or after the effective date of the Act.
It’s noteworthy that Islamic inheritance is considered broadly, and even forms of gifts before death under Sharia law, known as “nasa,” may fall within the definition of “inheritance” under Section 3. This interpretation was affirmed by a decision of the Supreme Court.
When initiating legal proceedings or making a complaint under Islamic law, the individual is required to explicitly state the following:
The subject matter of the case pertains to family and inheritance matters and, as such, should be governed by Islamic law. Typically, an individual’s Muslim status is determined based on the indication of religion found on their identification card. This indication serves as the primary basis for establishing an individual’s religious affiliation for legal purposes.
The application of Islamic Law, as defined under Section 3 of the Act on the Application of Islamic Law of 1949, is not restricted solely to residents of the four provinces (Pattani, Naratiwat, Yala, and Satun) where it is initially specified. Instead, the procedure allows for individuals from other parts of Thailand to utilize this provision. However, there is a condition that must be met:
The subject matter of the case, whether it involves family or Islamic inheritance, must fall within the jurisdiction of the provincial court of the four specified provinces (Pattani, Naratiwat, Yala, and Satun). In other words, the case should have a direct connection to these provinces in terms of jurisdiction, even if the parties or claimants do not necessarily have domicile there.
This means that individuals residing outside of the four provinces can access this special procedure if their case falls within the jurisdiction of the courts in these specific areas.
In cases involving Islamic inheritance under the Act on the Application of Islamic Law in the Provinces of Pattani, Narathiwat, Yala, and Satun, B.E. 2489, it is important to adhere to the specific provisions of the law. Here are the key points:
Islamic law can only be used to enforce the division of inheritance in cases that fall within the jurisdiction of the provincial courts of the four specified provinces (Pattani, Naratiwat, Yala, and Satun). If the case did not occur in these provinces, Islamic law cannot be applied to the division of inheritance, and the provisions of the Civil and Commercial Code regarding inheritance will prevail.
Even if the parties involved are Muslims and the case pertains to Islamic inheritance, it is crucial to follow the correct legal procedure. The method of dividing inheritance according to Islamic religion should be performed correctly and following the provisions of Section 1750 of the Civil and Commercial Code to have full legal effect.
When dividing inheritance according to Islamic law, proper documentation is essential. The record of sharing should not only contain a list of assets but also clearly indicate the agreement between the parties. It should be signed by all relevant parties to be valid and enforceable.
If the inheritance has not been properly shared according to Islamic law or the provisions of Section 1750, and the disputed property is still considered jointly owned, the matter may need to be resolved according to Section 1748 of the Civil and Commercial Code.
In essence, strict adherence to the legal procedures and documentation requirements is crucial in cases of Islamic inheritance to ensure that the division is valid and enforceable under the law. (Supreme Court Judgment No. 102/2517)
Under Islamic law in Thailand, a Muslim male can have up to four wives simultaneously. However, there are specific regulations regarding the registration of these marriages, especially for the second and subsequent wives:
How to get Islamic marriage certificate: The first wife can be registered under the standard resident registration system, which is the common legal procedure for marriages in Thailand. However, the second and subsequent wives cannot be registered through this system. These are part of the Islamic requirements for marriage in Thailand. Likewise also see the Islamic marriage process in the country.
Second and subsequent wives can only be registered through the Provincial Islamic Commissions. These commissions have the authority to handle the registration of marriages beyond the first wife. Note that you will then also need to obtain the Islamic marriage certificate. If you are a Malaysian then see the Islamic requirements for marriage for a Malaysian on this website.
In cases where there is a dispute or uncertainty about whether a woman is the second or subsequent wife, parties involved can consult the Provincial Islamic Commissions for clarification.
The status of second and subsequent wives, as recognized under Islamic law, is applicable not only in the southern border provinces but also before the Courts in other regions of Thailand. This recognition can have legal implications, such as when determining damages in cases like a husband’s death due to a traffic accident.
It’s important to note that these regulations pertain to marriages conducted under Islamic law and are specific to the context of Muslim marriages in Thailand. The registration and recognition of multiple marriages can vary significantly between different legal systems and jurisdictions.
In 1905, the Ministry of Interior issued a notification titled “Notification regarding the Limitation of Inheritance between Persons Professing the Islamic Religion.” According to this notification:
Forty-one individuals, including To Kali and To Imam, convened in the Pattani Regional Court on June 16, 1903, and reached an agreement that the limitation of inheritance should be set at one year. As a result of this agreement, inheritance cases occurring after November 1, 1905, were subject to a one-year limitation period.
During the codification efforts related to Islamic law principles in the 1930s, some members of the drafting committee proposed extending the limitation period for inheritance cases to five years. They argued that one year was too short, as Muslims typically observe a year of mourning during which they would not contest each other’s inheritances. However, this proposal was not accepted.
Instead of providing specific rules on the prescription of inheritance under Islamic law, the Act on the Application of Islamic Law in 1946 referred to the general rule on this matter as stipulated in the Civil and Commercial Code. Specifically, Section 1754 of the Civil and Commercial Code states that “an action concerning inheritance cannot be initiated later than one year after the death of the decedent or after the time when the statutory heir becomes aware or should have become aware of such death.” This provision in the Civil and Commercial Code was derived from Kamol’s work in 1996.
This legal framework outlines the time limitations for initiating inheritance-related actions within the context of Islamic law and inheritance practices in Thailand.
The table provides a summary of the number of Islamic law cases in the four southern border provinces of Thailand over several years. Here is a breakdown of the data:
These statistics provide insights into the caseload and disposition of Islamic law cases in the southern border provinces of Thailand during this period. It’s worth noting that there were fluctuations in the number of cases each year, and the number of pending cases also varied over time.
The presence of a dato yutitham, a special judge on Islamic law, within the framework of Thailand’s legal system is a distinctive feature. Here are some key points regarding the role of dato yutitham and the application of Islamic law within ordinary courts in Thailand:
According to Section 4 of the Application of Islamic Law Act, when a case involving the application of Islamic law is filed in the first instance courts, a dato yutitham sits alongside an ordinary judge to hear the case. Dato yutitham plays a crucial role in determining whether the case falls under Islamic law.
When a case is filed, court officers initially examine whether the complaint meets the required formalities. If the case is deemed to involve Islamic law, it is treated as a “religious case” and is assigned to a judge in the same way as ordinary cases.
The Act does not specify the composition of the quorum for Islamic cases. Typically, the court consists of one or two ordinary judges and one dato yutitham. In the courtroom, Dato Yutitham wears a gown similar to ordinary judges. While ordinary judges handle the examination of facts, including witness testimony, dato yutitham’s authority is limited to matters of Islamic law.
In practice, dato yutitham is often involved in the drafting of orders or judgments. The involvement of dato yutitham is particularly prominent in cases related to the probation of inheritance, undisputed cases, disputes over inheritance, divorce, and child support payments.
One reason for the relatively low number of Islamic law cases in the courts is the existence of dispute resolution mechanisms outside the formal court system. Both Masjid (mosques) and Provincial Islam Commissions have the authority to mediate and conciliate disputes among Muslims. This alternative dispute resolution process may lead to fewer cases being brought to the courts.
Overall, dato yutitham plays a vital role in ensuring the proper application of Islamic law within Thailand’s legal system, particularly in cases related to family and inheritance matters. The collaboration between dato yutitham and ordinary judges helps facilitate the resolution of these cases within the framework of the Thai legal system.
The table provides data on cases handled by the Pattani Provincial Islamic Commission for the years 1998 through 2001. Here’s a breakdown of the cases by type for each year:
Faskh (Dissolution of Marriage): No data was provided for these years.
Khul (Divorce Initiated by Wife): No data was provided for these years.
It appears that the majority of cases are related to Talaq and Taliq. These which are forms of divorce in Islamic law. The number of cases handled by the commission has increased over these years. Likewise indicating the significance of the commission’s role in handling family and marital disputes within the Islamic legal framework.