Saturday, 17 December 2011

Shari'ah law in the UK

The use of traditional Islamic religious law, or Shari'ah, in the UK has been advocated by various Muslim groups, ranging from the radical fringe to the mainstream Muslim Council of Britain.  In 2008, the Archbishop of Canterbury, Rowan Williams, and Lord Phillips, one of the country's most senior judges, made well-publicised remarks that appeared to express support for the idea.  However, the notion of Shari'ah being enforced in the UK is a controversial one, and figures from across the political spectrum have united in opposing it.

On the face of it, calling for Shari'ah in the UK is an unusual demand.  Classical Islamic scholars held that Shari'ah was not applicable in non-Muslim societies, and it never existed in systematic form outside the Islamic world.

How many British Muslims prefer Shari'ah law to British law or want it to be enforced in this country?  Very, very roughly, surveys from the past few years seem to reveal a 2-to-1 split against Shari'ah.  A poll conducted in 2006 by the Sunday Telegraph came up with a pro-Shari'ah figure of 40%.  In the same year, a survey carried out by GfK NOP Social Research for Channel 4's Dispatches found pro-Shari'ah sentiment running at 30%.  In 2007, a report by Policy Exchange put the figure at 28%.  A 2008 report by the Centre for Social Cohesion found that the level of support for Shari'ah among Muslim students was 40%.  These results were broadly consistent with a survey conducted in 2007-08 by the Centre for Islamic Pluralism, which reported that "[a]bout two-thirds of our interviewees" favoured UK law and opposed Shari'ah.


Where is Shari'ah enforced in the UK?

Shari'ah law is already being operated and enforced in the UK, although not much is known by non-Muslims about the country's Shari'ah infrastructure.

A 2009 report by Civitas claims that there are at least 85 Shari'ah courts in the country, which operate with varying degrees of formality.  These include the following networks:
Legally speaking, an arbitration tribunal like the Muslim Arbitration Tribunal can issue decisions that are enforceable in the civil courts, provided that the parties to the dispute in question have agreed by contract to accept the tribunal's jurisdiction.  The governing statute is the Arbitration Act 1996.  This jurisdiction is confined to civil and commercial disputes - family and criminal cases cannot be settled by arbitration.  Shari'ah can, however, work its way into the family law system if a couple ask a judge to sanction an agreed settlement that has been drawn up on the basis on Shari'ah (a "consent order", in legal parlance).

The Shariah Councils do not purport to conduct arbitrations.  Instead, they present themselves as more informal bodies which engage in a non-binding form of dispute resolution known as mediation.  In practice, however, it has been said that the two categories of Shari'ah-based institutions overlap to a great extent.  There have also been claims that Shari'ah arbitration tribunals have purported to conduct binding arbitrations on family law matters, and that Shariah Councils ask litigants to sign an agreement to abide by their decisions.

The Shari'ah bodies are kept busy.  The Islamic Sharia Council reports that it handled 1,500 cases from 1982 to 1995, 3,000 from 1996 to 2002, another 1,500 from 2003 to 2005 and around 1,000 since 2006.

It is reported that some non-Muslims, mindful of the weight that Shari'ah carries in the Muslim community, are bringing cases before Shari'ah bodies.  The founder of the Muslim Arbitration Tribunal has claimed that around 15% of the MAT's cases came from this source over 2011, compared to 5% in 2009.


What cases do Shari'ah courts consider?

Shari'ah cases overwhelmingly relate to family and marriage disputes.  The Islamic Sharia Council states that 95% of all applications received by it relate to matrimonial matters.  Of these, the majority are from women who are seeking a divorce from their husbands.


Shari'ah courts at work

There is some video footage of UK Shari'ah courts in session.  The Guardian website offers a video of the Islamic Sharia Council at work.  There is a longer video on the subject available from Channel 4's Dispatches programme.

As to narrative accounts, here is a description the Leyton branch of the Islamic Sharia Council:
In the back room of a converted corner shop... Sheikh Maulana Abu Sayeed is trying to save another marriage. He stretches across his desk and gently holds the hand of a young man with five o'clock shadow, whose eyes are red and swollen from crying. For more than an hour the man has been pleading with Sayeed to ask his ex-wife to give him a second chance. And for more than an hour, Sayeed has been quietly telling him that if his ex-wife does not want him back, there is nothing he can do. As the fraught meeting continues next door, one of Sayeed's colleagues... explains with a shrug, "He has come to us to ask for help, but if the woman is adamant and she doesn't want to reunite, what can we do?"...

The council... issues fatwas, or religious judgments, from two rooms that resemble a hard-up solicitors' practice, tucked away on a quiet terraced street of small family homes with roses in the front gardens....
This is an account of the Shariah Council based at the Birmingham Central Mosque:
The Shariah Council and the Family Support Service share a meeting room.... This meeting room is furnished in a modern style with desks, computers and filing cabinets and obviously functions as a working office. There is a notice on the door of the room which details times at which the office was open for enquiries. On one side of the longest desk in the meeting room there are larger high backed office chairs and on the other side of the desk smaller, office chairs....
Parties are originally dealt with by the Family Support Service. Two members of staff (both part time) are responsible for sifting the material or doing the preliminary work and when they reach a conclusion that the marriage is not viable or that the parties are insistent on separation or termination of the marriage the case is then put to the Shariah Council. They operate according to an unwritten code of practice. These functions have been delegated to the Family Support Service by the Shariah Council. The Shariah Council itself has four members, all of whom are volunteers. The panel is chaired by the chairman of the Mosque who is the fourth member. The members of the Council are chosen by the chairman of the Mosque on the basis of their knowledge of the Qur'an and Sunnah and also to ensure that the Council membership reflects different backgrounds.
The Shariah Council meets monthly, usually for about three to four hours at a time. Each case takes around five to six minutes since the preliminary work of testing whether the marriage is saveable has been done by the Family Support Service. They also give advice to the parties if there is anything which they notice that the parties should have taken into account before they got married; in particular, they advise applicants who had not registered their marriages under civil law to do this next time . The Council deals with around 150 cases a year. The Council works by consensus or by majority decision in the rare case of there being a dissenting voice. No reasons for decisions are given. Prior decisions are not understood as constituting binding precedents. The parties sometimes swear an oath and occasionally they bring a representative with them. People other than the parties are occasionally called to give evidence, including children. The Council has not called any expert witnesses to date. Parties may take their case to another Shariah Council if they are unhappy with the Council's decision.
Here is an account of the same council at work:
After being beaten repeatedly by her husband – who had also threatened to kill her – Jameela turned to her local Sharia council in a desperate bid for a way out of her marriage. Today she discovers the verdict. Playing nervously with her hands, the young mother-of-three listens as the panel of judges discuss whether they should grant her a divorce....

In an airless room in the bowels of the mosque, Jameela is asked to explain why she wants a divorce. She replies that her husband spends most of his time with his second wife – Islamic law allows men to have up to four wives – but complains he is abusive whenever he returns to her home.

Across the desk, Dr Mohammed Naseem, chair of the mosque’s Sharia council, sits alongside Talha Bokhari, a white-robed imam, and Amra Bone, the only woman sitting on an Islamic court in this country....

Although the judges appear sympathetic, they are concerned about the rights of the father, as Islamic law says he is still responsible for his children’s education. "For the sake of the children, you must keep up the façade of cordial relations," says Dr Naseem. "The worst thing that can happen to a child is to see the father and mother quarrelling."

Objections

The subject of Shari'ah law in the UK is fiercely controversial.  Some of the criticism comes from far-right groups with an anti-immigration agenda.  Other criticism is more serious-minded and less easy to brush aside.

One critic has argued that Shari'ah procedures are not truly voluntary or equitable:
First, voluntary arbitration is only acceptable if both parties genuinely consent. There is a good deal of intimidation of women in Muslim communities and the genuine consent of women could not be accepted as a reality. Second, women are not equal in sharia law.... Effectively the voice of a woman is half that of a man. Third, religious guidance is effective because individuals fear God or wish to remain in good standing with fellow believers.
Another report says:
Tanisha Jnagel, the community services team leader for Roshni Asian Women’s Aid in Nottingham... says that, in her experience, the Islamic Sharia Council will tend to try to balance the women’s interests against those of her husband, family and extended community. In many cases, this consultative approach can allow community leaders and family to pressure the women to withdraw plans to divorce or to return to abusive husbands.
An academic study has found:
Observation, case-file analysis and interviews revealed a troubling development for Muslim women using this space to obtain a Muslim divorce. For example, observing reconciliation sessions I became aware that several women had reluctantly agreed to attend the meetings and felt that they had little choice but to do so if they were to be issued with a divorce certificate. Of the ten women I observed in these sessions a staggering four had informed the religious scholar that they were party to civil injuctions issued against their husbands on the grounds of violence and threatening behaviour. In this way these privatised legal processes were ignoring not only state law intervention and due process but providing little protection and safety for the women in question. Furthermore the interviews and observation data revealed that husbands used this opportunity to negotiate reconciliation financial settlements for divorce and in many cases access to children. Settlements which in effect were being discussed under the shadow of law.
Some of the most stringent criticism has come from the One Law For All campaign:
In one case... a father who went to a civil court in order to gain the custody of his child had a “Worldwide Expulsion and Boycott Order” issued by the Sharia Council against him. He explained “they are still forcing me and my family to hand over the child, withdraw the case from the UK court, accept all their demands and allegations and keep apologising until they pardon me for taking the case to UK Family Court and ignoring their internal court.”
....Ismail Einashe, One Law for All’s Policy and Campaigns Coordinator, says: “My cousin was forced by her husband to seek a resolution at a Sharia Council. The only “choice” she was given was to stay with her husband or lose her children. I don’t think that can be a choice; how can it be? Every day dozens of women like her are bullied, and forced into Sharia courts across the country. How can we allow these women to have lesser rights? Is this really the way to foster social cohesion and to protect the most vulnerable in our society?”....
Fariborz Pooya, Chair of the Council of Ex-Muslims of Britain, says: “Sharia law is not voluntary, but rather compulsory by its very nature. To deceptively talk of the voluntary nature of these courts is a means by which Islamic groups give legal cover and pretence to their discrimination. For the Government to accept this argument is akin to outsourcing the legal system to Islamic groups. This is detrimental to, and a betrayal of, the rights of our most vulnerable citizens to being equal before the law.”

What do the civil courts say about Shari'ah?

In 2008, the House of Lords ruled in EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64.  This case concerned a Lebanese woman who was seeking asylum in order to avoid being sent back to Lebanon with her 12-year-old son.  In Lebanon, Shari'ah family law would have given custody to her abusive husband.  This was argued to be incompatible with the European Convention on Human Rights.

Lord Brown referred to this aspect of Shari'ah as "arbitrary and discriminatory" and as "wholly incompatible... with certain of the basic principles underlying the Convention".  Lord Hope had this to say:
This system was described by counsel... as arbitrary and discriminatory. So it is, if it is to be measured by the human rights standards that we are obliged to apply by the Convention.... Under our law non-discrimination is a core principle for the protection of human rights. The fact is however that Shari'a law as it is applied in Lebanon was created by and for men in a male dominated society. The place of the mother in the life of a child under that system is quite different under that law from that which is guaranteed in the Contracting States by article 8 of the Convention read in conjunction with article 14. There is no place in it for equal rights between men and women. It is, as Lord Bingham points out, the product of a religious and cultural tradition that is respected and observed throughout much of the world. But by our standards the system is arbitrary because the law permits of no exceptions to its application, however strong the objections may be on the facts of any given case. It is discriminatory too because it denies women custody of their children after they have reached the age of custodial transfer simply because they are women.
The Convention is policed by the European Court of Human Rights (ECtHR) in Strasbourg, whose rulings are binding on the UK in international law.  The ECtHR has been asked to rule on a number of occasions on Turkey's secularism legislation.  In its judgment in Refah Partisi v Turkey (41340/98, 41342/98, 41343/98 and 41344/98), handed down on 13 February 2003, the Court questioned whether the introduction of Shari'ah law was compatible with the European liberal democratic tradition:
Even though these last two statements lend themselves to a number of different interpretations, their common denominator is that they both refer to religious or divine rules as the basis for the political regime which the speakers wished to bring into being....  [T]he statements concerned could reasonably have been understood as confirming statements made by Refah MPs which revealed the party’s intention of setting up a regime based on sharia....

The Court concurs in the Chamber’s view that sharia is incompatible with the fundamental principles of democracy, as set forth in the Convention:
Like the Constitutional Court, the Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. The Court notes that, when read together, the offending statements, which contain explicit references to the introduction of sharia, are difficult to reconcile with the fundamental principles of democracy, as conceived in the Convention taken as a whole. It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts....
....When the former theocratic regime was dismantled and the republican regime was being set up, Turkey opted for a form of secularism which confined Islam and other religions to the sphere of private religious practice. Mindful of the importance for survival of the democratic regime of ensuring respect for the principle of secularism in Turkey, the Court considers that the Constitutional Court was justified in holding that Refah’s policy of establishing sharia was incompatible with democracy....
It is only fair to note that the ECtHR's decisions in this line of cases have attracted some criticism.


Legal reform

Earlier this year, the crossbench peer Baroness Cox tabled legislation in the House of Lords which would effectively outlaw Shari'ah-based arbitration.  Legislative restrictions on Shari'ah-based arbitration were introduced in the Canadian province of Ontario in 2006.