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Published: Fri, 02 Feb 2018
Multiculturalism result of globalization
An increase in multiculturalism as a result of globalization has led to the demand for alternative dispute resolution that would permit parties to move their disputes from the government courts into the domain of religious or customary sources of law and authority. The current controversy in the United Kingdom, with the establishment of arbitration tribunals using Shari’ah law to settle civil disputes, namely matrimonial matters and divorce, has divided public opinion with many British citizens fearing that government recognition of such tribunals will lead to bringing Shari’ah law “through the back door” into mainstream politics and society. However, the use of religion to settle private disputes has been recognized for over one hundred years. The focus of this paper will be on the establishment of arbitration tribunals, using Shari’ah law, in divorce cases. The question of the legitimacy of such tribunals and how they fit within the British legal system is an important topic of debate. It is argued that the use of Shari’ah law is a legitimate form of alternative dispute resolution that affects many of the more than two million Muslims living in the United Kingdom.
Arguments against Muslim legal pluralism in Britain include the failure of Muslims to integrate into western societies. Additional claims are made in the press that Muslims are using the freedoms granted to European citizens to circumvent their social and civic responsibilities. Many look at multiculturalism and religious practice and belief and, while respecting cultural and religious diversity, question the need to accommodate these beliefs in western society through the creation of distinct and separate legal mechanisms based on Shari’ah law. The issue is whether the use of Shari’ah law in alternative dispute resolution can fit within the confines of English Law and the legitimacy of such an endeavour.
This study uses empirical research to examine the legitimacy of Islamic family law in England and to consider whether the emergence and development of arbitration tribunals based upon Shari’ah Law constitutes new forms of governance and laws in matters of divorce within Muslim communities in Britain.
Muslims in the United Kingdom
After France and Germany, the United Kingdom has the largest Muslim population of any country within the European Union. Initially, this was a result of Commonwealth immigration from the 1950s onwards. According to the 2001 Census, the majority of Muslims living in England and Wales are from Pakistan, but from the 1970s onwards, Britain, especially London, has attracted the rich and professional classes from Somalia, Bosnia, Afghanistan and Iraq. With the rise of population groups such as these came a kind of racism in Britain. Anti-discrimination laws and policies began to be put into place from the 1960s, influenced by contemporary thinking and practice in the United States regarding anti-black racism, on the grounds of ‘colour’ and ethnicity. Discrimination and homogeneity of internal religious values has led to, for Muslims, a universal concept of belonging to a community of believers, or Umma, in which all are considered equal because of their submission to Allah, rather than a fundamental attachment to the watan, or homeland. In other words, Muslims feel a sense of universal community with other Muslims based on religious, rather than nationalistic, ideas.
In England and Wales, Muslims descend from or come from India, Pakistan, Bangladesh, and various Arab countries. They represent major branches of Islam, Sunnism and Shiism, and Islamic schools of thought, Deobandis, Barlewis, and Wahhabism. The Umma consists of many different groups in relation to ethnic, religious and cultural difference that may provide a sense of ‘solidarity’ as a result of social and political exclusion. For Salman Sayyid, the Muslim Umma cannot be understood in a uniform way, but “to understand the homogeneous nature of Muslim communities coupled with social and political rivalries reveals ambiguities and that particular features of the Muslim Umma are contested, debated, challenged and approached by different members and groups within society.”
Despite anti-discrimination laws, it was not until 2003 that discrimination against Muslims as Muslims was unlawful in Britain, because the courts did not accept Muslims as an ethnic group, despite recognition given to Jews and Sikhs as ethnic groups within the meaning of the law. The development and emergence of a Muslim identity, based on sociological and more importantly, religious identity, put pressure on the English legal sphere and the assertion of a religious identity had important implications for public policy, as Muslims in England no longer confine their religious identity to their private life, as, according to Islam, there is no separation between religion and law. The area of law in western societies is an area where Muslims have found a collective voice to challenge and demand basing their claims on a religious identity. It is as a result of this collectivity and liberal multiculturalism that the emergence and development of bodies identified as Shari’ah Councils has been able to occur.
Diversity, Religion and English Law
English constitutionalism is based on the rule of law, and from that flows equality before the law. It does not, however, recognize systems of personal law for different communities, but does recognize the right to practice freely cultural customs and religious beliefs within the confines of existing law. The practice of what may be deemed personal laws are often referred to as ethnic or religious customs, which are acceptable provided they do not directly contravene or contradict English law. The plural nature of society in western countries is characterized by a clash of a given set of values, identity, and interests between State laws and the minority of religious communities.
In 1976, the Race Relations Act was enacted by Parliament to safeguard the rights of minority groups by attempting to create equal opportunities for ethnic and racial groups, but stopped short of extending protection to religious groups and failed to recognise religious discrimination as an offense. This Act defined Sikhs, Jews, and Gypsies, but not Muslims, Hindus, or Afro-Carribeans, as ethnic groups. That is not to say that legal protections were not extended to certain religious groups. The Shop Act 1950 exempted Jews from Sunday trading laws. The Slaughterhouse Act 1979 provided both the Jewish population and Muslims the right to slaughter and purchase kosher and halal meat. Further, the Motorcycle Crash Helmet (Religious Exemption) Act 1979 allows Sikhs who wear a turban to drive a motorcycle without a helmet, which is compulsory for all others. The Race Relations (Amendment Act) 2000 requires public authorities to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between different racial and ethnic groups.
The courts have also defined what is to be considered an ethnic or racial group. The Mandla v Dowell Lee (1983) case concerned a Sikh student who was prohibited from carrying or wearing religious symbols in school. The House of Lords had to interpret the meaning of ethnic minority. It took a wide view that included seven criteria, among which was a shared and common belief amongst its members. The House of Lords ruled that the headmaster had violated the Race Relations Act 1976, and Sikh children were permitted to carry religious symbols in schools. This case was an important victory for other religious and ethnic groups in England to be recognized by the judiciary. It is important to note, that until 2000, no legislation existed forbidding discrimination on religious grounds. Thus, relying on common law, religious groups were able to assert rights that had not existed previously.
Family Law Issues in England
Family law matters relating to the validity of religious marriages, polygamy, and circumcision are areas in conflict with religious legal practice and principles of State law. An important development that paved the way for the use of Shari’ah law in England and Wales was the introduction of the Divorce (Religious Marriages) Act 2002. This legislation impacted the rights of Jewish women to obtain a Get, or Jewish divorce. The Act empowers civil courts to delay granting a Decree Absolute until both parties have completed the necessary steps required in order to dissolve their marriage religiously. The 2002 Act amended the Matrimonial Causes Act 1973 and safeguards against either party refusing to grant or receive a religious divorce as a potential negotiating tool in civil divorce cases. Although the Divorce Act 2002 applies to members of the Jewish faith explicitly, the Act applies if a divorce has been granted but not made absolute and the parties to the marriage concerned were married in accordance with “any other prescribed religious usages.” Unlike a civil divorce, a religious divorce does not attain the status of legality, meaning it is not recognized by the State as a divorce, only a divorce through the court systems is legally recognized. Religious authorities, although recognized and acknowledged by the Act, are not a legal court. A civil divorce must be granted, alongside a religious divorce if the parties so wish. The need for a religious divorce is of course, the basis for claims for recognition of a separate set of rules to govern the personal lives of those whose religion requires it.
The issue of why religious divorce is needed depends on the religious requirements of the couple in question. In the Islamic religion, a religious divorce recognises the validity of the termination according to the rules and regulations which are important, either spiritually to them and more broadly in the context of social and community respectability. Also, this can affect whether a Muslim, who has a legally recognised divorce, may remarry either within their own community, or abroad in countries such as Pakistan. In Pakistan, divorce is regulated by the Muslim Family Law Ordinance (1961), the obtaining of a religious divorce is required, and this law “extends to the whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they may be.”
In order to understand how and why Shari’ah has been introduced into England and Wales, it is essential to look at the example of the Beth Din, a rabbinical court that was granted legal powers in England to settle disputes and rule on religious matters for the Jewish community. Under Jewish Law, parties are forbidden to take their civil disputes to a secular court and are required to have those disputes adjudicated by a Beth Din. Among the activities performed by Beth Din is the granting of a religious divorce, known as a Get.
In 1996, a new Arbitration Act was passed, which repealed earlier legislation, and was designed to provide statutory statement of both statutory and common law principles of alternative dispute resolution in clear and comprehensible language, complying where appropriate with international rules and principles governing arbitration. Jewish courts in England and Wales function as legally binding arbitration tribunals for civil cases, including issues of divorce, property disputes, or employment disputes. Subject to procedural rules and safeguards specified in the Arbitration Act 1996, these tribunals can make legally enforceable awards if they are deemed reasonable by the civil courts. The Beth Din also functions as a religious, and not legal authority. Jewish courts rule on a variety of religious matters, and often mediate between parties according to prescribed interpretations of their faith.
Arbitration is a consensual process under the laws of England and Wales. Litigating parties sign an arbitration agreement consenting to accept the judgment of the arbitrator. In no case does the Arbitration Act 1996 give tribunals the power to assume jurisdiction over individuals or entities not party to the arbitration agreement. Parties to a tribunal are permitted to apply to the court, a High Court or county court, for the removal of an arbitrator if there are doubts about impartiality or if there are failures in conducting the proceedings properly. Once the tribunal has reached its decision, either party is able to appeal to the High Court or a country court to have the decision overturned on the grounds of “serious irregularity affecting the tribunal, the proceedings or the award.” For example, in the case of Soleimany v Soleimany, the Court of Appeals ruled that a Beth Din finding was contrary to public policy and was therefore, non-enforceable.
It is against the backdrop of multiculturalism and the international human rights movement that challenges traditional sources of power and legitimacy of State law. The Human Rights Act 1998 is the legislative instrument that incorporated the European Convention on Human Rights (ECHR) into the law of the United Kingdom. The ECHR provides for non-discrimination on grounds of religion, race, national or social origin, and, among others, association with a national minority. The impact on the Muslim community and its relationship and conflicts with English law began to emerge. Islamic religious practice was protected and more Muslims were confident of asserting their rights in the public sphere. For example, in the Azmi v Kirklees case, a Muslim women brought a case to an Employment Arbitration Tribunal for claims of direct and indirect religious discrimination and harassment based upon her own religious beliefs. She was a teacher who refused to remove her full-face veil while teaching, contrary to the schools policies. Despite losing her case, it is an example of social practices that underlie much of the current movement of minorities in England to maintain their personal and religious customs and rituals as well as the dependence of these minorities on the rights and protections granted by the Human Rights Act 1998. The movement towards assertion of rights and the groundwork laid by the Acts of Parliament would allow for a new form of ADR that would allow Muslims to utilize the laws of England in order to regulate their own affairs.
The Muslim Community and Shari’ah Law
The Muslim community in Britain have set up an internal regulatory framework to settle disputes, preferring to keep family matters out of the hands of the courts. For several years there has been a campaign by Muslim groups to establish a Muslim personal law system in order to regulate personal and family related issues autonomously and according to Islamic law. Ishfan Yilmaz states that “law is a socio-cultural construct…it can be observed from a socio-legal perspective that this phenomenon of socio-cultural reconstruction of Islamic identity in the country has had inevitable legal reflections.” Muslims wish to be regulated by principles of Islamic law no matter where they are living. Indeed, Islamic legal theories speak of the universality of Islam in the sense that all Muslims are equally subject to all its decrees in the same way without geographical boundaries. No Muslim who possesses a sound mind, or mukallah, is exempt from any of its ordinances. Muslims do not only wish to be regulated by the principles of Islamic law when living in a non-Muslim State, but seek to formalise such an arrangement within a State’s legal system. Historically, Muslims view and argue that religious freedom and Islam’s general record of tolerance and respect for Jewish and Christian minorities in Muslim lands to be reciprocated in the West.
To better understand Muslim legal pluralism in England and Wales, it is necessary to examine exactly what is meant by Shari’ah Law. Islamic law is an all-embracing set of religious duties based upon Allah’s commands that regulate Muslim behaviour in all aspects, including worship, rituals, political and legal rules. The theory of Islamic law is known as usul al-fiqh. ‘Shari’ah’ means a way to the watering-place or a path apparently to seek felicity and salvation. It refers to commands, prohibitions, guidance and principles that Allah has addressed to mankind regarding their conduct in this world and salvation in the next. The two primary sources of law are the Quran and the Sunna. They are also known as revealed and non-revealed, the former providing the basic evidence from which detailed rules may be derived, the latter providing the methodology and the procedural guidelines to ensure correct utilisation of the source evidence. The Quran is the most sacred source of law in Islam, embodying knowledge that Allah had revealed about human beliefs and behaviour. The Quran contains some five hundred legal verses. It consists of positive law, definitive ordinances which incorporate word for word the speech and commandments of God. Sunna literally means a clear path or a beaten track, but it is also used to imply a normative practice, or an established course of conduct. The form of narratives of sayings of the Prophet contained became known as hadith. Hadith and Sunna differ in that the hadith is a narration of the conduct of the Prophet whereas Sunna is the example or the law that is deduced from it.
A further complication of Shari’ah and Islam as a whole is the number of different doctrinal legal schools. In Sunni Islam, there are four: Hanafi, Maliki, Shafi’i and Hanbali, named after their master-jurists who are believed to be their founders. Many Muslim countries have developed their own distinct set of Muslim laws. As will be seen, Shari’ah Councils in England and Wales are not unified nor do they represent a single school of thought, but are made up of various different bodies representing the different schools of thought in Islam. Critics would argue that it is not clear which Muslim law would apply to an established set of facts, and question what would happen if the different groups of Muslims in Britain did not agree about the interpretation of Muslim law, legal certainty may be jeopardized.
Islamic law as a religious law can have the status of moral but not legal rules, in civil as well as in public law. Muslims living in Britain are subject to the same laws and rules as other citizens of England and Wales, but family law is an area for Muslims in which religious beliefs, legal principles and family relations are closely intertwined. For many, living in a society that experiences high numbers of children out of wedlock, abortion, pornography, and marital breakdowns, there is a belief that these issues could be avoided if Muslims could operate within a system of Islamic personal law.
Islamic Family Law and Divorce
This section explains divorce under Islamic law and its compatibility with English law. Under Islamic law, a divorce can be obtained in a number of ways. Extrajudicially, men may divorce their wives by unilateral repudiation, known as talaq. The khul is divorce at the instance of the wife, with the husband’s agreement, and on the basis that she will consent to forego her right to dower. Finally, the mubara’at is a divorce by mutual consent. One problem within the Muslim community is the issue of re-marriage after divorce. In some instances, a husband may continue to deny his wife a religious divorce. In this instance, she may feel unable to re-marry because in the Muslim community she is still regarded as being married. This is known in the legal field as a “limping marriage.” Following the divorce, Islamic law obliges a husband to support his wife during a period of idda, during which she is precluded from remarriage.
As previously stated, the religious divorce is not considered legal within the meaning of English law. A civil divorce is necessary through the court system. The only way to obtain a divorce is through a decree granted by a court of civil jurisdiction on the grounds that a marriage has irretrievably broken down. That being said, the laws of England are recognising people’s need for religious divorce, and the Divorce (Religious Marriages) Act 2002 allows applicants to incorporate religious requirements to exist alongside civil requirements under the law. As section (2) of the Act states, if the parties were married in accordance with the usages of the Jews or any other prescribed religious usages, the court may order that a decree of divorce is not made absolute until a declaration is made by both parties that they have taken such steps as are required to dissolve the marriage in accordance with those usages is produced to the court.
The existence of unofficial Muslim law operating in England and Wales is proof that legal pluralism exists, meaning two or more legal systems coexist in the same social field. Despite expectations of assimilation, Muslims have not turned their back on their religious laws and demands for recognition of a Muslim personal law system to regulate personal and family issues according to principles of Islamic law have increased in recent years. The impact of human rights legislation and the growing numbers of Muslims living in Britain have increased the legitimacy of the use of Shari’ah law in England and Wales. The evolution of which will be discussed in the following chapter.
Shari’ah Councils and Alternative Dispute Resolution
Cultural and political developments have led to an integration of Muslim community ideals in the form of Shari’ah Councils in Britain over the past thirty years. In the 1970s, the Union of Muslim Organizations of the UK and Eire (UMO) submitted a formal resolution to various government ministers to seek official recognition of a separate system of family law which would automatically apply to Muslims living in the UK. It was submitted to the Home Office in 1989, and reiterated publicly in 1996. The response by government ministers was extremely negative and was rejected because the suggested legislation was deemed to be “not appropriate.”
In 1978, a group of imams began to resolve issues after those within the Muslim community wanted to establish informal conciliation mechanisms, especially in the field of family matters. The Islamic Shari’a Council (ISC) was founded, and according to its literature, indicated the reluctance of the English legal system to recognise and solve problems and to take into consideration the Islamic point of view, and insisted on one country, one law. The ISC is a quasi-Islamic court that applies Islamic rules to deal with problems facing Muslim families as a result of obtaining judgments in their favour from the State court system, but no having the sanction of the Islamic Shari’ah.
The ISC is not tied to any particular school of Islamic fiqh and is prepared to offer parties their choice of any school that fits their particular needs regardless of whether this conforms with the school prevailing in their country of origin, domicile, or nationality. The rulings of the ISC are based on rulings derived from the four main schools of thought together with other sources within the Sunni Tradition. At times, they choose minority interpretations or views to resolve a conflict.
During the ‘80s and ‘90s there was an expansion of organizations which assumed a political importance focusing on cultural and religious specificity of Muslims and the practice of minority religious values. Today, there are over two hundred and fifty organizations established in England and Wales. While there is evidence that attributes the emergence of minority organizations to liberal-democratic government policies and human rights protections being extended to European citizens as a result of multiculturalism, it is equally as compelling to understand communities forging closer ties due to a common shared belief, history, and religious convictions.
In 2007, Sheikh Faiz-ul-Aqtab Siddiqi established the Muslim Arbitration Tribunal, which operates in London, Bradford, Manchester, Birmingham, and Nuneaton. Under the Arbitration Act, the Muslim Arbitration Tribunal allows disputes to be resolved through the use of Shari’ah Law. According to the Arbitration Act, all rulings of tribunals are binding in law, provided that both parties to the dispute agree to give it the power to rule on their case. This includes enforcement by the county and high courts in England and Wales. According to the Muslim Arbitration Tribunals website, they believe in the co-existence of both English law and personal religious laws. In fact, safeguards are required by the Arbitration Act 1996 which is followed by the Muslim Arbitration Tribunal, among those is that when sitting, it must have at least two members, one of which is a scholar of Islamic sacred law and the other a solicitor or barrister who is qualified to practise law in England and Wales.
In an interview with the Muslim Arbitration Tribunal, it was stated that the tribunal can deal with any aspect of civil law, but not criminal law and not involving the care of children. This is consistent with English law, as arbitration is not permitted on matters of criminal law and family law, this is a matter solely within the confines of the court system. The use of arbitration to settle civil or family disputes is voluntary and in does not require that it be used under any circumstance. Bridget Prentice, Secretary of State for Justice, of the Ministry of Justice stated in October 2008, “the legal system that operates the courts in England and Wales does not incorporate any elements of Shari’ah law.” Further, any order in a family case is made or approved by a family judge applying English family law. If a dispute involving family matters deals with money or children, the parties to a judgment of a Shari’ah tribunal which they wish to have recognised by English authorities, they are free to draft a consent order embodying the terms of the agreement and submit them to an English court. This allows English judges to scrutinise it to ensure that it complies with English law tenets.
It is important to note that most of the controversy on the subject of Muslim Arbitration Tribunals comes from the news media. In many articles, newspaper headings reported that Islamic law has been officially adopted in Britain and that the government has quietly sanctioned powers for Shari’ah judges to rule on divorce cases. This simply is not the case. The head of the judiciary, the Lord Chief Justice, Lord Phillips, stated that there can be no calling for imposing sanctions for failure to comply with Shari’ah law, nor any question of such courts sitting in this country, or such sanctions being applied within England or Wales. Those who live in the country are governed by English law and subject to the jurisdiction of the English courts.
In sum, the use of Shari’ah law in the Muslim Arbitration Tribunals is based on voluntary submission by the parties to the jurisdiction of the tribunal. It can deal with religious divorces, as well as civil and family disputes. It cannot, nor does it claim to, deal with matters that are the exclusive domain of the English judiciary, that is criminal and family law, especially in relation to child custody issues. Religious divorce granted in the UK is not a legally recognised divorce, but may coexist alongside a civil divorce obtained in a court of law under the laws of England and Wales.
The United Kingdom is not the only western country dealing with the issue of legal plurality. In Canada, the attempt of legal recognition of Shari’ah tribunals was tried without lasting success. It is useful to look at the Canadian struggle and its endeavour to accommodate religious law within the existing legal system.
Canada and Shari’ah Law
The Constitution of Canada grants people the right to live according to their own traditions. In 2004, Canada the Islamic Institute of Civil Justice (IICJ) in Ontario petitioned the provincial government to recognise a Shari’ah court as a committee for arbitrage and to grant legal, binding power to its decisions on separation and hereditary settlement. In February 2005, the Parliament of Ontario changed the Family Law and Arbitration Acts which, subject to certain conditions, permits individuals the right to resort to arbitration in their own ethnic or religious community. For example, such arbitration must be conducted exclusively with the law of Ontario or another Canadian jurisdiction, according to Section 1(b) of the Family Law Act.
Neither the federal Divorce Act 1985 or the Ontario Family Law Act mentions arbitration, as jurisdiction in family matters may be federal or provincial, or shared. Marriage and divorce, including child custody matters, child and spousal support are the exclusive jurisdiction of the federal government, according to Section 91 of the Constitution Act 1867 and the Divorce Act 1985. Like most countries, arbitration is allowed and encouraged by the State in an effort to reduce the workload of the courts and to encourage the peaceful settlement of disputes. As a provincial matter, the right to resort to arbitration in matters of marriage and divorce is at the discretion of the province. In Quebec, arbitration on family matters is not permitted because the status of persons and family matters are considered to pertain to public order, according to Section 2639 of the Civil Code.
Months of debate within Canada and speculation in the press, as well as a report by Amnesty International who expressed concern that such Shari’ah courts could be discriminatory and not fully comply with international human rights standards was followed by a request by the government of Ontario to the NDP Attorney General Marion Boyd to review the entire Arbitration Act. The Act allowed for mediation where parties could agree to a settlement and arbitration in which both parties freely agree upon a process and then an arbitrator decides on a settlement, based on a set of legal ground rules, subject to Canadian law. As in England and Wales, only civil matters could be dealt with under the arbitrary process, criminal matters had to be dealt with in the courts.
One of the main criticisms, which is also a matter of debate within the UK, is that different countries have different interpretations of Islamic law. Apart from the fundamental division between Sunnis and Shi’is, there are a number of different schools of Islamic thought. Additionally, many countries where Muslim law is applied have, in the twentieth century, modernised and reformedit by means of local statues or ordinances. Arguably, it is evident that the questions over choice of law in each case could depend on nationalities, domiciles or countries of origin. Islamic law, like any system of legal rules, is open to interpretation and one can easily predict the controversy that could surround interpretations of the finer points of Islamic law.
Ms. Boyd’s report was delivered in December 2004. She addressed the concerns of those who believed that the use of Shari’ah law in family arbitration would result in discrimination against women in matters of polygamy, inheritance, and rules of divorce. She referred to studies that show how widely the positions of women in Islamic countries differ, and because of the variety of the law schools in Islam, the classical rules are applied in widely divergent ways. Groups such as the Humanist Association of Canada objected to the use of religious principles in Canadian law, stating there should be no religious alternative to the secular laws that govern family law and inheritance matters in Canada. To this criticism, Boyd stated that religious principles have informed the laws which are now regarded as secular in Canada. Further, the laws are patently Christian in nature, enshrining Christian values such as monogamy in marriage or restrictions around divorce.
To the argument that there would never be a single, centralised Shari’ah tribunal that all Muslims would ac
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