Shari’a Law In Trinidad And Tobago? A Brief History of the Muslim Population in Trinidad and Tobago and the Implementation of Muslim Laws into the National Laws of Trinidad and Tobago Caribbean Law Yearbook Vol. 1, Issue 1. By Natalie Ghosn, Esq.

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Table of Contents

Introduction ...................................................................................................................................2

Background ....................................................................................................................................4

Muslim Marriage and Divorce Act .................................................................................................7

Case Law ........................................................................................................................................8

Practical Impact ...........................................................................................................................10

Hypothetical: Interaction Between the Muslim Marriage and Divorce Act of Trinidad and Tobago and Florida Law ............................................................................................................................13

An Interview: Fazeel Mohamed, Graduate of B.A. Islamic Studies, Islamic University of Madinah, Kingdom of Saudi Arabia. Licensed Muslim Marriage Officer of Trinidad and Tobago. (Edited Version).........................................................................................................................................20

Conclusion ....................................................................................................................................23

Bibliography..................................................................................................................................25

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INTRODUCTION

Trinidad and Tobago is a nation of 1.3 million people, 5.8%

of them being Muslim.1 It a pluralistic society with holidays from

various religions recognized as public holidays. For example, the

Christian holidays of Good Friday and Easter Monday, the Hindu

holiday of Divali and the Muslim holiday of Eid ul Fitr.2 According to the National Census

Report of 2000, 73,601 Muslims were living in Trinidad and Tobago.3

The legal system of Trinidad and Tobago is mainly that of a common law tradition. The

British conquered Trinidad and Tobago in 1797 but decided to maintain the existing Spanish law

that was currently in place on the Island and gradually introduce the British Common Law.4 The

situation was different in Tobago, where the English Common Law had been in place since the

settlement of that island in 1764 according to the doctrine of settlement for Tobago.5 Because of

the gradual introduction of the English Common Law to slowly override Spanish Law and two

brief periods of French take-overs in Trinidad there lay a state of uncertainty concerning the

                                                                                                                         1 Index Mundi, Trinidad and Tobago Demographics Profile 2011, CIA World Factbook, 30 December 2010, http://www.indexmundi.com/trinidad_and_tobago/demographics_profile.html. 2 KEMPS, Trinidad and Tobago-Country Information, Reed Business Information (2011), http://www.kftv.com/countrydetail-TTO-TT.htm. 3 CARICOM Capacity Development Programme, 2000 Round of Population and Housing Census Data Analysis Sub-Project, National Census Report Trinidad and Tobago, http://www.cso.gov.tt/news/Announcement%20Document%20Library/TrinidadandTobago2000NationalCensusReport.pdf. 4 Jerry Dupont, The common law abroad: constitutional and legal legacy of the British Empire, Fred B. Rothman Publications, Buffalo, New York, 2000. 5 Id.

Trinidad's multi-ethnic society

promotes a unique cultural space that merges different

traditions.1

 

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laws. In 1898, an Order in Council was issued to clarify that State in the Law. Tobago was to

have the laws of Trinidad. That law was to be the English Common Law.6

When Trinidad and Tobago gained independence, on 31 August 1962 it maintained the

system of the English Common Law. Present day, Trinidad and Tobago maintains the Privy

Council in London as its highest Court of Appeals for all matters with the exception of those

issues which fall under the CARICOM treaty which are governed by the Caribbean Court of

Justice located in Port of Spain, Trinidad and Tobago.7

Given the clear nature of Trinidad and Tobago being a country governed by the English

Common Law it is interesting to see that its national legal system came to embody laws from

other traditions; such as, Hinduism and Islam. The entrance of Islamic traditions stemming from

the Islamic legal code, the Shari’a, will be examined in more detail below. This phenomenon;

however, is not unique, as other nations with the tradition of the Common Law System have,

under certain circumstances usually concerning that particular nation’s history, come to embody

other legal traditions within an overall Common Law System. Take for example the presence of

the Napoleonic Code in the Civil Code of Quebec in Canada, a country of common law origin

and Louisiana’s Civil Code in the United States of America, also a country of common law

origin.8

The existence of Islamic laws which apply only to the Muslim population in Trinidad and

Tobago is largely a feature of the Island’s history of cultural pluralism and the history of the

Muslim population in Trinidad and Tobago which has had an effect on the Country’s national

                                                                                                                         6 Id.  7 U.S. Department of State Diplomacy in Action, Background Note Trinidad and Tobago, Bureau of Public Affairs, (2010), http://www.state.gov/r/pa/ei/bgn/35638.htm. 8 Louisiana Civil Code, http://www.legis.state.la.us/lss/lss.asp?folder=67 and Canadian Law, The Napoleon Code (Civil Code), http://www.canadianlawsite.ca/NapoleonCode.htm.  

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legal system. The Trinidadian model of incorporating aspects of cultural relativism into the

national legal system is innovative in certain respects and will be examined in more detail below.

The following article will examine, in brief, the history of the Muslim population in

Trinidad and Tobago which led to the implementation of Muslim laws into the national laws of

Trinidad and Tobago as well as the practical implications of these laws with particular focus on

the age of consent for marriage under the Muslim Marriage and Divorce Act.

BACKGROUND

Although, Islam in Trinidad and Tobago today is more prevalent among East Indian

decedents it is important to note that the enslaved African peoples were the first to bring Islam to

the Caribbean. However, the Islam of the African Muslim population was almost entirely

eradicated by Colonial presence by the time of emancipation. With the arrival of many Muslim

persons through the indentured labourers program from India another wave of Islam reached

Trinidad and Tobago. This wave endured colonial pressures and the colonial powers very much

approved of the strict family institution of both the Muslim and Hindu indentured labourers.

Through these indentured labourers from India, Islam has survived in Trinidad and Tobago until

present day. The majority of Muslims arriving to Trinidad and Tobago through the indentured

labourer program belonged primarily to the Hanafi School of Islam. There were also some

Shi’ite Muslims.9

There did exist some pressure on Muslims to convert to the other major religions in

Trinidad and Tobago, mainly those of Hinduism and Christianity but because of the endurance of                                                                                                                          9 Trinidad Guardian – Muslims, Historical View of Muslims in Trinidad, Indian Diaspora Supplement, 30 May 2000, http://www.caribbeanmuslims.com/articles/6/1/Historical-view-of-Muslims-in-Trinidad/Page1.html.

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some members or the Muslim community, who fought for the recognition of Islam, the religion

endured. In 1883, Syed Abdul Aziz came to Trinidad from Afghanistan.10 Syed Abdul Aziz who

was a scholar in religion wrote to the Colonial authorities attempting to convince them of the

importance of the cause of the Muslims.11

After the actions of Syed Abdul Aziz there was a dominoes effect of developments

throughout the years by which the Muslim community as a whole took affirmative steps to

preserve their religion and culture and obtain official recognition from the Government of

Trinidad and Tobago.12 There was the continued establishment of Mosques and organizations by

and for the Muslim community.13 Between 1914 and 1921 there were missionaries from India

travelling to Trinidad and Tobago. The Muslim community strongly objected to their presence.14

In 1926, the Tackveeyatul Islamic Association (“TIA”) was founded and was

incorporated by Act of Legislature in 1931.15 “WHEREAS there has been established in the

Colony an Association known as The Tackveeyatul Islamic Association of Trinidad...which is

representative of the Muslims in the Colony.”16

After this Act of Legislature there were considerable establishment of Islamic Schools or

Maqtabs. Through these schools there were attempts to revitalise and establish Islam in Trinidad

and Tobago.17 On 31 October 1935 the Legislative Council of Trinidad and Tobago passed an

                                                                                                                         10 Halima Kassim, CaribbeanMuslims.com, Muslims and Missionaries of Trinidad From Cohesion to Discord and and Disunity,(2011) http://www.caribbeanmuslims.com/articles/1029/1/Muslim-and-Missionaries-of-Trinidad/Page1.html. 11 Id. at 9. 12 Id. 13 Id. 14 Id. 15 Tackveeyatul Islamic Association of Trinidad and Tobago (T.I.A.) (2009), http://www.islamtia.com/aboutus.html. 16 An Ordinance for the incorporation of certain persons as Trustees of the Tackveeyatul Islamic Association, No. 39, 15 December 1931. 17 Id. at 9.

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ordinance to incorporate certain persons as Trustees of the Anjuman Sunnat ul Jamaat

Association of Trinidad and Tobago (“ASJA”).18 “WHEREAS there has been established in the

Colony an Association known as the Anjuman Sunnat-ul-Jammat Association of Trinidad.”19

This came to be one of the most influential Islamic organizations in Trinidad and Tobago. Note

that the ordinance remained subject to the English Colonial Rule.

Nothing in this Ordinance shall affect or be deemed to affect the rights of His Majesty, His Heirs or Successors, or of any bodies politic or corporate or of any other persons except such as are mentioned or are referred to in this Ordinance and those claiming by, through, from or under them.20

Today ASJA runs several school as well as adult literacy programs.21

On 15 August 1947 the Trinidad Muslim League was founded.22 The Trinidad Muslim

League was incorporated by Act of Parliament as No. 26 of 1950.23 “WHEREAS there has been

established in the Colony an Association known as the Trinidad Muslim League...which is

representative of the Non-Conformist (Ghair Mukallid) Muslims in the Colony.”24 Note that this

is the same day Pakistan became independent. Today, Trinidad’s Muslim community continues

to be a vibrant and active segment of the population and the community continues to influence

both the public and private spheres including education and the National Government. The                                                                                                                                                                                                                                                                                                                                                                                                          18 CaribbeanMuslims.com, A Historical Review of the Anjuman Sunnat ul Jamaat Association – ASJA, From 70th Anniversary Souvenir Magazine 1935-2005, 4 April 2009, http://www.caribbeanmuslims.com/articles/1131/1/A-HISTORICAL-REVIEW-OF-THE-ANJUMAN-SUNNAT-UL-JAMAAT-ASSOCIATION----ASJA/Page1.html. 19 An Ordinance for the incorporation of certain persons as Trustees of the Anjuman Sunnat-ul-Jammat Association of Trinidad, No. 24, 31 October 1935. 20 Id. 21 Searchintt, Find Businesses, Products & Services in Trinidad and Tobago, Anjuman Sunnat ul Jamaat Association, http://www.searchintt.com/Trinidad/anjuman+sunnat+ul+jamaat+association. 22 CaribbeanMuslims.com, The Historical Review, From 50th Anniversary Souvenir Magazine 1947-1997, 17 February 2009, http://www.caribbeanmuslims.com/articles/1107/1/A-HISTORICAL-REVIEW-OF-THE-TML-/Page1.html. 23 Id. 24 An Ordinance for the Incorporation of certain persons as Trustees of the Trinidad Muslim League, No. 26, 13 May 1950.  

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Trinidad Muslim League has historically been involved in education, mainly at the Kindergarten

and Primary school levels. In recent years they have been involved in the planning of sporting

events, mainly cricket, other Islamic excursions and various charity work handled primarily by

the League’s female members.25

In 1961, the Muslim Marriage and Divorce Act was borne. This Act will be discussed in

more detail below.26

MUSLIM MARRIAGE AND DIVORCE ACT

The Muslim Marriage and Divorce Act of Trinidad and Tobago is available, for viewing

in its entirety at, http://rgd.legalaffairs.gov.tt/Laws2/Alphabetical_List/lawspdfs/45.02.pdf .Of

particular interest to the practical implications of Muslim laws in Trinidad and Tobago is the age

of consent for civil marriage.

The Marriage Act Chapter 45:01 lays down the provisions for the marriage of a minor

with the consent of his or her parents or guardian. The age of consent for marriage in Trinidad

and Tobago is governed by this Act. The definition of a minor can be found in the Citizenship of

the Republic of Trinidad & Tobago Act Chapter 1:50. A minor is defined as 'being a person who

has not attached the age of 18 years'.27

By contrast, under the Muslim Marriage and Divorce Act Chapter 45:02 section 8, the

age at which a person, being a member of the Muslim Community, is capable of contracting

                                                                                                                         25 Trinidad Muslim League Incorporated, On Facebook, http://www.facebook.com/group.php?gid=121999517813272. 26 Law of Trinidad and Tobago, Muslim Marriage and Divorce Act Chapter 45:02, Ministry of Legal Affairs (1961), http://rgd.legalaffairs.gov.tt/Laws2/Alphabetical_List/lawspdfs/45.02.pdf. 27 Laws of Trinidad and Tobago, Citizenship of the Republic of Trinidad & Tobago Act Chapter 1:50, Ministry of Legal Affairs, http://rgd.legalaffairs.gov.tt/Laws2/Alphabetical_List/lawspdfs/1.50.pdf.  

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marriage shall be sixteen (16) in the case of males and twelve (12) in the case of females.

However in the case an intended marriage between persons either of whom is under eighteen

(18) consent is required from a father and if deceased a guardian.28

CASE LAW

West Indian societies are described as pluralistic societies, meaning that they are made up of diverse ethnic, social and religious groups. To what extent is this pluralism reflected in the

law?29

There have been several examples of the clash between Muslim societal norms in Trinidad and

Tobago and National Institutions. Take for example, the following two cases and the Trinidad

and Tobago Jury Act.

Mohammed v. Morraine (1995) 49 WIR 371

Applicants parents asked the school to permit the applicant to wear dress conforming to the hijab. The principal of the school and its board of management refused to allow any such exemption; although they accepted the sincerity of the belief of the applicant and her parents that the applicant was required by the Islamic faith to conform to the hijab. Still, the applicant attended school wearing a modified version of school uniform which conformed to the hijab; but she was not allowed to attend classes and was in effect suspended. The applicant instituted proceedings for judicial review of the decision to suspend her and also claimed redress for contravention of her constitutional rights.30 The Court ordered that decision of the respondents be quashed, that the respondents had applied the school regulations inflexibly and had not taken into account the psychological

                                                                                                                         28 Interpol, Legislation of Interpol Member States on Sexual Offences Against Children, Trinidad and Tobago (2010), http://www.interpol.int/public/Children/SexualAbuse/NationalLaws/csaTrinidadtobago.asp and Laws of Trinidad and Tobago, Muslim Marriage and Divorce Act Chapter 45:02 (1961), http://rgd.legalaffairs.gov.tt/Laws2/Alphabetical_List/lawspdfs/45.02.pdf. 29 University of West Indies College of the Bahamas, Faculty of Law, Law and Legal Systems – Origins and Evolution of Law in the Legal Institutions of the Commonwealth Caribbean – The Reception of Law and its Historical Construct, 2002-2003, http://www.oocities.org/uwicobllb/Topics123.htm. 30 In Sumayyah Mohammed v. Moraine and Another, High Court of Trinidad and Tobago, The West Indian Reports, 49 WIR 371 (1995).  

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effect on the applicant of refusing to allow her to conform to the hijab (to which exception was not taken by the Ministry of Education); there was no evidence to support the respondents’ plea that conforming to the hijab would be conducive to indiscipline or would erode the sense of tradition or loyalty to the school, nor that it would accentuate distinctions between students from affluent homes and less affluent ones; the respondents in having regard to the fact that the applicant could apply for admission to another school and to their fear that others might follow the example to seek exemption from the requirements as to school uniform had taken irrelevant factors into account; in these regards the decision of the respondents had been an unreasonable exercise of their powers conferred by the Education Act and was unsustainable.31

Mohammed v. Mohammed (No. 1729 of 2003)

The parties were married under the Muslim Marriage and Divorce Act Ch. 45:02, on 5 January 1992. They had two children, Shardel, born on 22nd November, 1992 and Safraz born on 2nd March, 1996. Unhappy differences arose between the parties. A petition for the dissolution of the marriage was presented by the Defendant to the Divorce Council of the Anjuman Sunnat al Jammat Association on 21 March, 2000. This marriage was celebrated in 1992 under the Muslim Marriage and Divorce Act. Ch. 45:02, and was dissolved under the same Act. The Court allowed leave to bring the matter of Property Distribution outside the Muslim Marriage and Divorce Act and According to the Matrimonial Proceedings and Property Act.32

Trinidad and Tobago Jury Act

Chapter 6.52 Section 4 and 5 States:

(1) Every person shall be qualified to be a juror who – (a) Is over the age of eighteen years and under the age of sixty-five

years; (b) Is ordinarily resident in Trinidad and Tobago; (c) Was born in Trinidad and Tobago; or, not being so born, has resided

in Trinidad and Tobago for two years or more; (d) Is able to read and write the English language and understand the

same when spoken; and

                                                                                                                         31 Id. 32 In Cynthia Mohammed v. Halim Mohammed, No. 1729 (2003).    

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(e) Is either – (i) Seised or possessed of freehold or leasehold interest in land of

the clear annual value of seven hundred and twenty dollars; or (ii) In occupation of a house which is rated or assessed to some

general or local tax on an annual value of not less than six hundred dollars; or

(iii) In receipt beneficially of a net annual income of not less than three thousand dollars.

(2) Notwithstanding subsection (1), a married woman shall be qualified to be a juror if – (a) Her husband is qualified to be a juror; and (b) She possess the qualifications specified in subsection (1)(a) and

(d).33

It came to issue that a woman was disqualified from jury service because she was

wearing a burka (a form of dress worn by a certain sector of the Muslim community). Upon

examination it was found that:

A Muslim woman, wearing a burka, has the same privileges as anyone else to serve as a juror in the High Court of T&T. Under the Jury Act, a woman wearing a burka cannot be disqualified from sitting as a juror because of her attire. Justice Joan Charles, presiding in the Port-of-Spain High Court, delivered a 25-page judgment ... in which she ruled the court had no jurisdiction or authority of its own motion, or upon any other basis, to disqualify a person from serving as a juror on the sole basis that the individual was wearing a burka.34

PRACTICAL IMPACT

While the differing laws for persons based on their religious affiliation has operated for

the most part with ease in Trinidad and Tobago, this practice has come under pressure from the

International Community, particularly in recent years. The OECD Development Centre helps                                                                                                                          33 Laws of Trinidad and Tobago, Jury Act Chapter 6:53 (1922), http://rgd.legalaffairs.gov.tt/Laws2/Alphabetical_List/lawspdfs/6.53.pdf. 34 Island Mix Forums, Trinidad and Tobago Muslim Women can wear Burqas on Juries, Taken from the Guardian and the Trinidad Express, 2010, http://www.islandmix.com/backchat/f6/trinidad-tobago-muslim-women-can-wear-burqas-juries-211988/.

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policy makers in OECD and developing countries find innovative solutions to the global

challenges of development, poverty alleviation and the curbing of inequality.35 The OECD’s

assessment of gender and social institutions in Trinidad and Tobago has provided some useful

insight into the concerns stemming from the International Community regarding the Muslim

Marriage and Divorce Act in Trinidad and Tobago. This assessment concluded that Women in

Trinidad and Tobago have a moderate degree of protection within the family context.

The minimum legal age for marriage depends on the type of union involved and early marriage still occurs. National law stipulates that men and women must be 18 years old to marry. By contrast, Islamic Shari’a law sets the minimum age for marriage at 12 years for women and 16 years for men. National law states that minors cannot marry without the consent of their parents, and must always have reached the minimum age set by their community. A 2004 United Nations report estimated that 9 per cent of girls between 15 and 19 years of age were married, divorced or widowed.36

The Tenth periodic report of States parties due in 1992, dated 15 August 1994 for

Trinidad and Tobago regarding the Convention on the Elimination of All Forms of Racial

Discrimination raised concerns over Trinidad and Tobago’s applicability of law based on

religious affiliation out of a fear that this promoted sectoral tensions. It was noted that:

Trinidad and Tobago's legislation applies to all citizens irrespective of race and while there is no legislation that discriminates against any one particular race or group in the society, special legislation does exist or is enacted from time to time to promote the activities of various sectoral interests. In this respect, special legislation exists to regulate Muslim marriages and divorces (the Muslim Marriage and Divorce Act chapter 45:02 of the Laws of the Republic of Trinidad and Tobago).37

                                                                                                                         35 OECD, About, http://www.oecd.org/department/0,3355,en_2649_33731_1_1_1_1_1,00.html.      36 Social Institutions and Gender Index, Gender Equality and Social Institutions in Trinidad and Tobago, Taken from CEDAW (2001), UN (2004), US Department of State (2007), http://genderindex.org/country/trinidad-and-tobago. 37 United Nations, International Convention on the Elimination of all Forms of Racial Discrimination Tenth periodic reports of States parties due in 1992: Trinidad and Tobago, CERD/C/224/Add.1. (State Party Report), 15 August 1994, http://www.unhchr.ch/tbs/doc.nsf/0/68fe0e2819945a9a8025655b00423f85?Opendocument.

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The Trinidad and Tobago Coalition on the Rights of the Child Comments, dated April

2005, stressed the importance of the involvement of the judiciary in Trinidad and Tobago in

addressing these concerns. They felt that without “a stand on the issue of age of marriage in the

interest of the girl child in particular” on the part of the judiciary there would be, in the opinion

of the committee, a continued exploitation of girls and young women in Trinidad and Tobago

which was being “legitimized within the framework of domestic law.”38

The Committee on the Elimination of All Forms of Discrimination Against Women,

governed by the Convention on the Elimination of All Forms of Discrimination Against Women,

in its twenty-sixth session also raised concerns about the minimum age of marriage under

Trinidad and Tobago’s Muslim Marriage and Divorce Act. There were particular concerns about

the provision in the Muslim Marriage and Divorce Act that permitted girls to marry at such a

young age.39

It was concluded that marriages entered into under the Muslim Marriage and Divorce

Act, according to its minimum age requirement, constituted child marriage which was harmful to

health. It was also noted that these child marriages are prohibited both under the Convention on

the Elimination of All Forms of Discrimination against Women and under the International

                                                                                                                                                                                                                                                                                                                                                                                                        38 Comments on T&T second periodic report under the CRC Presented by the Trinidad and Tobago Coalition on the Rights of the Child, NGO Comments on Trinidad and Tobago Second Periodic report under the CRC, April 2005, http://www.crin.org/docs/resources/treaties/crc.40/Trinidad_ngo_report.pdf. 39 United Nations, International Convention on the Elimination of all Forms of Racial Discrimination, CEDAW/C/SR.537, Twenty-Sixth Session, 30 January 2002, http://www.unhchr.ch/tbs/doc.nsf/0/13543f97141bf38bc12572a20038f160/$FILE/N0222574.pdf.

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Convention on the Rights of the Child. The Committee urged the Government of Trinidad and

Tobago to address this contradiction.40

The Committee also gave various suggestions on how the matter could be challenged and

addressed through the existing domestic laws in Trinidad and Tobago. For example, a women’s

organization “could bring such litigation under the equality clause of the Constitution.” Another

suggestion was, “to request an overriding of the fundamental right to privacy, including privacy

in marriage, in the interest of public welfare; after all, child marriage was a health issue.” The

Committee’s report also pointed out that there was a legal contradiction between the Muslim

marriage age and the fixing of age 14 as the legal minimum for sexual consent by girls and

believed that could perhaps be an avenue that could be exploited to support amending the

marriage law.41

HYPOTHETICAL: Interaction between the Muslim Marriage and Divorce Act of Trinidad and Tobago and Florida Law

While the above marital union is clearly permitted in Trinidad and Tobago, the home

country, under the Marriage Muslim and Divorce Act this legality in the home country does not

in and of itself mean that the act is then permitted where it is banned by law in another country;

                                                                                                                         40 Id.  41 Id.

A couple, aged 17 (husband) and 14 (wife) married under the Muslim Marriage and Divorce Act of Trinidad and Tobago and travelled to Florida, United States of America. A hotel manager has reported them to the Police or the Department of Children and Families. How would Florida law cope with this situation?  

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such as, is the case in the State of Florida. The legality of the action in a home country does not

necessarily travel to the other country if such action is illegal according to the laws of the other

country. For example, a Dutch individual, citizen of the Netherlands is permitted to smoke

marijuana recreationally, considered a soft drug, under the national laws in the Netherlands.

However, if that same individual were to smoke marijuana in the State of Florida for recreational

purposes the laws of the State of Florida would govern the action, not the national laws of the

Netherlands. Following this principle, it may be reasonable to conclude that although marriage

between a 14 year old Muslim female and a 17 year old Muslim male which occurred in Trinidad

and Tobago that was legally recognized under Trinidad and Tobago’s national laws through the

Muslim Marriage and Divorce Act could potentially pose legal difficulties in the United States

for the travelling couple in Florida. Issues such as these are important for Trinidad and Tobago

because the Island has such a unique cultural make-up and individuals from the various cultural

backgrounds on the Island can be anticipated to travel to and from the United States.

The minimum age for marriage in Florida is 18 for both men and women; however, this

is not a strict rule and exceptions do exist. Florida Statute § 741.0405, When marriage license

may be issued to persons under 18 years states:

(1) If either of the parties shall be under the age of 18 years but at least 16 years of age, the

county court judge or clerk of the circuit court shall issue a license for the marriage of such

party only if there is first presented and filed with him or her the written consent of the parents

or guardian of such minor to such marriage, acknowledged before some officer authorized by

law to take acknowledgments and administer oaths. However, the license shall be issued without

parental consent when both parents of such minor are deceased at the time of making

application or when such minor has been married previously.

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(2) The county court judge of any county in the state may, in the exercise of his or her discretion,

issue a license to marry to any male or female under the age of 18 years, upon application of

both parties sworn under oath that they are the parents of a child.

(3) When the fact of pregnancy is verified by the written statement of a licensed physician, the

county court judge of any county in the state may, in his or her discretion, issue a license to

marry:

(a) To any male or female under the age of 18 years upon application of both parties sworn

under oath that they are the expectant parents of a child; or

(b) To any female under the age of 18 years and male over the age of 18 years upon the

female's application sworn under oath that she is an expectant parent.

(4) No license to marry shall be granted to any person under the age of 16 years, with or without

the consent of the parents, except as provided in subsections (2) and (3).

Thus, in the scenario of the travelling Muslim couple from Trinidad and Tobago, the

couple may be found to be in compliance with Florida law if the wife is pregnant or the couple is

shown to have sworn to be the parents of a particular child.

While the United States automatically recognizes marriages celebrated in another state if

the celebrating State is a State Party to the Hague Marriage Convention (this is true even though

the United States is itself, not party to this Convention),42 Trinidad and Tobago is also not a

signatory to the Convention and the Convention doesn’t allow the overriding of an act that would

constitute a crime in the United States, or in our scenario, the State of Florida. Further, if it was

                                                                                                                         42 Hague Conference on Private International Law, The Hague Marriage Convention (2007), http://www.hcch.net/upload/outline26e.pdf.

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found that the marriage in question was against the State of Florida or US Public Policy then

there would be stronger grounds to recognize the invalidity of this marriage in Florida.

However, in the above scenario Florida law does not in and of itself prohibit even non-

married persons of the opposite sex from sharing a hotel room. Where the issue may arise would

be in the case of lewd or lascivious sexual conduct if the couple were to engage in sexual

activities in the hotel room. This provision could be invoked to target the young Muslim couple

from Trinidad and Tobago legally married in their home country and criminal penalties could be

found under Florida Statute Section 800.04, Lewd or Lascivious Offenses Committed upon or in

the presence of persons less than 16 years of age.

Florida Statute Section 800.04 (2011) Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age states: (1) Definitions. --As used in this section: (a) "Sexual activity" means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. (b) "Consent" means intelligent, knowing, and voluntary consent, and does not include submission by coercion. (c) "Coercion" means the use of exploitation, bribes, threats of force, or intimidation to gain cooperation or compliance. (d) "Victim" means a person upon whom an offense described in this section was committed or attempted or a person who has reported a violation of this section to a law enforcement officer. (2) Prohibited defenses. --Neither the victim's lack of chastity nor the victim's consent is a defense to the crimes proscribed by this section. (3) Ignorance or belief of victim's age. --The perpetrator's ignorance of the victim's age, the victim's misrepresentation of his or her age, or the perpetrator's bona fide belief of the victim's age cannot be raised as a defense in a prosecution under this section. (4) Lewd or lascivious battery. --A person who:

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(a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or (b) Encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity commits lewd or lascivious battery, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (5) Lewd or lascivious molestation. (a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation. (b) An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a life felony, punishable as provided in s. 775.082(3)(a)4. (c) 1. An offender less than 18 years of age who commits lewd or lascivious molestation against a victim less than 12 years of age; or 2. An offender 18 years of age or older who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (d) An offender less than 18 years of age who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (6) Lewd or lascivious conduct. (a) A person who: 1. Intentionally touches a person under 16 years of age in a lewd or lascivious manner; or 2. Solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct. (b) An offender 18 years of age or older who commits lewd or lascivious conduct commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

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(c) An offender less than 18 years of age who commits lewd or lascivious conduct commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (7) Lewd or lascivious exhibition. (a) A person who: 1. Intentionally masturbates; 2. Intentionally exposes the genitals in a lewd or lascivious manner; or 3. Intentionally commits any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a victim who is less than 16 years of age, commits lewd or lascivious exhibition. (b) An offender 18 years of age or older who commits a lewd or lascivious exhibition commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (c) An offender less than 18 years of age who commits a lewd or lascivious exhibition commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (8) Exception. --A mother's breastfeeding of her baby does not under any circumstance constitute a violation of this section.

As mentioned above, although the minimum age for marriage in most circumstances is

eighteen in Florida the husband in our scenario would not have to register as a sex offender if

sexual activity between the couple is reported because there is not more than 4 years difference

between the ages of the husband and the wife. The scenario would be different is the wife was

fourteen and the husband was nineteen.

Florida Statute 943.04354 Removal of the requirement to register as a sexual offender or sexual predator in special circumstances states:

(1) For purposes of this section, a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person:

19    

(a) Was or will be convicted or adjudicated delinquent of a violation of s. 794.011, s. 800.04, s.827.071, or s. 847.0135(5) or the person committed a violation of s. 794.011, s. 800.04, s. 827.071, or s. 847.0135(5) for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s. 794.011, s. 800.04, s. 827.071, or s. 847.0135(5);

(b) Is required to register as a sexual offender or sexual predator solely on the basis of this violation; and

(c) Is not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation.

(2) If a person meets the criteria in subsection (1) and the violation of s. 794.011, s. 800.04, s.827.071, or s. 847.0135(5) was committed on or after July 1, 2007, the person may move the court that will sentence or dispose of this violation to remove the requirement that the person register as a sexual offender or sexual predator. The person must allege in the motion that he or she meets the criteria in subsection (1) and that removal of the registration requirement will not conflict with federal law. The state attorney must be given notice of the motion at least 21 days before the date of sentencing or disposition of this violation and may present evidence in opposition to the requested relief or may otherwise demonstrate why the motion should be denied. At sentencing or disposition of this violation, the court shall rule on this motion and, if the court determines the person meets the criteria in subsection (1) and the removal of the registration requirement will not conflict with federal law, it may grant the motion and order the removal of the registration requirement. If the court denies the motion, the person is not authorized under this section to petition for removal of the registration requirement.

(3)(a) This subsection applies to a person who:

1. Is not a person described in subsection (2) because the violation of s. 794.011, s. 800.04, or s.827.071 was not committed on or after July 1, 2007;

2. Is subject to registration as a sexual offender or sexual predator for a violation of s. 794.011, s. 800.04, or s. 827.071; and

3. Meets the criteria in subsection (1).

(b) A person may petition the court in which the sentence or disposition for the violation of s.794.011, s. 800.04, or s. 827.071 occurred for removal of the requirement to register as a sexual offender or sexual predator. The person must allege in the petition that he or she meets the criteria in subsection (1) and removal of the registration requirement will not conflict with federal law. The state attorney must be given notice of the petition at least 21 days before the hearing on the petition and may present evidence in opposition to the requested relief or may otherwise demonstrate why the petition should be denied. The court shall rule on the petition and, if the court determines the person meets the criteria in subsection (1) and removal of the registration requirement will not conflict with federal law, it may grant the petition and order the removal of the registration requirement. If the court denies the petition, the person is not authorized under this section to file any further petition for removal of the registration requirement.

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(4) If a person provides to the Department of Law Enforcement a certified copy of the court’s order removing the requirement that the person register as a sexual offender or sexual predator for the violation of s. 794.011, s. 800.04, s. 827.071, or s. 847.0135(5), the registration requirement will not apply to the person and the department shall remove all information about the person from the public registry of sexual offenders and sexual predators maintained by the department. However, the removal of this information from the public registry does not mean that the public is denied access to information about the person’s criminal history or record that is otherwise available as a public record.

In the case of Lucilia Lopes (Appellant) v. Luciano Lopes (Appellee), the difficulty of

marriage laws of another country intertwining with the United States is demonstrated. In this

case, the Circuit Court for Lake County Florida reviewed its earlier decision holding the

Appellant’s divorce, which took place in the Dominican Republic void. This decision was

confirmed and resulted in the Appellant’s purported remarriage to Appellee void under Florida

law because she was still married to her husband, through her marriage in the Dominican

Republic, at the time of the second purported marriage. As such, the second purported marriage

was null and void under Florida law. 43 This resulted in the Appellee not being liable to pay

alimony. Further estoppels arguments on the part of the Appellant also failed because she did not

tell Appellee about the Dominican Divorce until 12 years into marriage. The divorce occurred 15

years into marriage.

AN INTERVIEW: FAZEEL MOHAMED, GRADUATE OF B.A. ISLAMIC STUDIES, ISLAMIC UNIVERSITY OF MADINAH, KINGDOM OF SAUDI ARABIA. LICENSED MUSLIM MARRIAGE OFFICER OF TRINIDAD AND TOBAGO. (EDITED VERSION)

Introduction: "The existence of Islamic (Shari'a) laws which apply only to the Muslim population in Trinidad and Tobago is largely a feature of the Island's history of cultural pluralism and the                                                                                                                          43 In Lucila Lopes v. Luciano Lopes, Case No. 5D02-793, Court of Appeal of Florida, Fifth District, 852 So. 2d 402.

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history of the Muslim population in Trinidad and Tobago which has had an effect on the nation's legal system. Given the clear nature of Trinidad and Tobago being a country governed by the English common law it is interesting to see that its national legal system came to embody laws from other traditions such as Islam. For example, the Muslim Marriage and Divorce Act of Trinidad and Tobago. It is also interesting to see that these laws only embodied some aspects of Shari'a such as the age of marriage but not others such as polygamy."

How did Trinidad and Tobago come to have Islamic Laws as part of its National Laws? – Natalie Ghosn

The Muslim Marriage and Divorce Act came about in 1961. This was before Trinidad even got independence which was in 1962. The Constitution guaranteed equality among people and Trinidad was viewed as a melting pot of different cultures and religions. Trinidadians held a significant amount of Pride in being a pluralistic society made up of different religions and different cultures and a society that could peacefully co-exist with these differences. – Fazeel Mohamed

What are your feelings on how Trinidad and Tobago has implemented Muslim Laws? – Natalie Ghosn

This pride of being a pluralistic society has endured and things have operated fairly smoothly in the country with regard to the attitudes of others towards Muslims. In 1990, with the attempted coup by the Jaamat al Muslimeen we experienced some animosity towards the community; however, those feelings have not endured and are long forgotten now and that group is now generally recognized as representing only a very small segment of converts to the Islamic faith. Many feel that the conversions by members of this group were possibly a pretext to justify a particular use of violence based on religious grounds and in some cases may not be genuine. – Fazeel Mohamed

I believe that Trinidad and Tobago has done the best they could do in the conditions they have, they have to think about the Hindus and others as well. I would welcome the introduction of more Shari’a Law in Trinidad and Tobago if permitted. In particular, the introduction of the ability to take more than one wife as has recently been permitted in South Africa through the Polygamy and the Recognition of Customary Marriages Act. – Fazeel Mohamed

What other actions has Trinidad and Tobago taken to accommodate its Muslim Population? – Natalie Ghosn

The Government of Trinidad and Tobago has tried to embrace different religions. For example, those Muslim persons working in the public service sector are now permitted an extra hour off on Fridays for Jumu’ah prayers. – Fazeel Mohamed

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Muslim women can also now wear a hijab for passport photos; however, the nigab is still prohibited because it would not show the woman’s face. Muslim men can also wear a Kufi (Taquyah) in passport photos. – Fazeel Mohamed

Do you see any problems with the system of Muslim Laws in Trinidad and Tobago encountered by Muslim couples travelling abroad? – Natalie Ghosn

I have not heard of any problems abroad in the United States or elsewhere and although I do not know the laws in the United States I would assume a foreign country would recognize a couple travelling with a foreign marriage certificate. – Fazeel Mohamed

Have you experienced any problems with the system of Muslim Laws in Trinidad and Tobago domestically? – Natalie Ghosn

In a certain sense the Muslim laws are subject to national law in the sense that difficulties arise when marriages conducted under the Muslim Marriage and Divorce Act are not properly registered. There are different books available for recording marriages and recordation is done differently in the Islamic Tradition. It is also my knowledge that there are different books in the Hindu religion as well. In Islam, every man gives a dowry to the wife. There is required to be 2 male witnesses. In Islam 2 female witnesses is the equivalent of 1 male witness. – Fazeel Mohamed

I had an issue where one mother wanted to be a witness. Islamically that marriage was ok because there were enough people present to witness the union in the eyes of God. I called the State and asked if it would be ok if there was one woman instead of one man and they said it did not make a difference to them. – Fazeel Mohamed

There have also been problems domestically with the proper registration of marriages. There was one couple aged 14 female and aged 18 male that did not register their marriage properly. In this situation, theoretically the government could hold the husband for statutory rape, which is why proper registration is so important. - Fazeel Mohamed

Another situation I came across was a 47 year old man had a friend who had a daughter who was 14. The daughter was not going to school or doing anything so they thought she should get married. The girl was not Muslim so she became Muslim for the purposes of being legally able to marry under the Muslim Marriage and Divorce Act. The couple never collected their marriage certificate. The 14 year old became pregnant. When she was in the hospital they assumed because she was 14 and pregnant something had been done to her that was wrong. Because I had properly kept records of the marriage, not only the marriage certificate, but also, the documentation of the wife’s father’s consent to the marriage I was able to provide this documentation to the authorities. Once this documentation was presented the authorities let them be. - Fazeel Mohamed

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CONCLUSION

Although, the quote to the side symbolizes how many Muslim-Trinidadians feel about

their society there still remains concerns surrounding the various efforts made to protect children

in Trinidad and Tobago. The International Community has generally felt that Trinidad and

Tobago’s efforts to protect children have occurred only half-heartedly despite their signing of the

International Convention on the Rights of the Child.44 With regard to the Convention on the

Elimination of All Forms of Discrimination Against Women, Trinidad and Tobago signed this

Convention on 27 June 1985 and acceded to the Convention on 12 January 1990. Trinidad and

Tobago did not make any reservations with regard to the age of consent to marriage when

becoming party to this Convention.45 Thus, the Muslim Marriage and Divorce Act of Trinidad

and Tobago, while embodying an innovative technique to cope with the pluralistic make-up of

the Nation stands in contrast to the International

obligations Trinidad and Tobago has voluntarily agreed

to be bound by. This tension is sure to exert some

pressure on Trinidad and Tobago to reform either its

internal domestic laws or its international obligations in

the future.

                                                                                                                         44 Caribbean Rights, The Independent Jamaican Council for Human Rights, Children’s Rights – A Trinidad and Tobago Perspective, 26 March 2009, http://ijchr.org/archives/29. 45 United Nations Treaty Collection, Chapter IV Human Rights – Convention on the Elimination of All Forms of Discrimination Against Women, Status as at 23 April 2011, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en.  

Trinidad is a society in which religious and cultural traditions

are acknowledged and respected. This kind of practice

has created an open and accepting society in which

Muslims are welcome to share their customs and religion.1

 

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