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The Sharia Law Debate – what's next?

About The Author

Lewis Bedford (Former Writer)

Lewis is a third year law student at Newcastle University. Lewis' main interest lies in politically weighted areas of law, in particular regarding conflicts of law and religion. He is also interested in legal philosophy.

Although not formally endorsed, the Arbitration Act 1996 provides a solid infrastructure for faith-based arbitration. The Act was originally designed principally for commercial disputes, however, in 2008 Shaykh Faiz-ul-Aqtab Siddiqi recognised the loophole within the law classifying faith-based awards as binding subject to the parties’ prearranged consent. Following from this, awards within councils on all matters could now also become legally binding with the authority of the courts under s 66 of the Act.

Faith-based arbitration has caused quite a stir amongst legal minds and the public alike. Earlier this year, for example, Kris Hopkins MP questioned Westminster on the birth of a parallel legal system beyond the reach of the common law. Hopkins brought forward similar concerns that have been in circulation since the Act's instatement.

Without those common law hurdles which uphold equal rights and fair resolution in place, parties are arguably left settling their disputes contrary to their best interests. One common example is the rules of intestacy. Under national law, if a relative dies intestate the estate falls under the rules of intestacy. The estate is thus divided equally between the rightful heirs or given to the remaining spouse and held on trust for his or her remaining heirs. Under Sharia and Orthodox Jewish law the estate usually falls within the hands of the oldest male heir in its entirety.

Making matters worse, many argue that vulnerable parties are often coerced into arbitrating by interpersonal pressures, fears of disrespecting their faith, and social duress. Hopkins, like many before him, specifically singled out the operation of Sharia councils within the UK. He among others, claims Muslim women are often victim to the common imbalance and unequal power relations between sexes inherent within Islamic teachings. However, whether these observations are correct is also open to debate.

Sharia governs the lives of Muslims and their relationship with society. Sharia itself is not one codified text but a collection of Islamic teachings and practices passed down over fourteen centuries. Examples range from the Qur'an, to consensus of opinion and analogical deduction. However, interpretations differ between communities.  Urfan Khaliq underlines how, as a pluralistic society, we are likely to be subject to differing interpretations. He notes how “it is more accurate to refer to the Muslim communities or population, as opposed to the Muslim community”.Female circumcision and forced marriage both hold testament to how striking these discrepancies can be. Both, he notes, are practised in various sectors of the Muslim population, repugnant to some, and compulsory forothers. Due to the extent and multitude of branching translations, a fine-spun assessment of the precise treatment of women under Sharia is not only impractical but also unfair. Indeed, any argument against faith-based arbitration is arguably only representative of one far removed interpretation.

Unfortunately, this has not stopped some from making such claims. Due to a heavy dose of sensationalism, fears as to the integrity of Western jurisprudence have spread like wildfire. Concerns first peaked in retaliation to the Archbishop of Canterbury's article on the binding of Sharia with the UK legal system. The general consensus was that Islam was “repressive towards women and wedded to archaic and brutal physical punishment”.

In recent years matters have only worsened. A daunting number of far-right street protests have been seen fanning the flames all over Britain. Protestors are heard spitting ill-advised and undeniably racist rhetoric on a number of issues. As a result, it seems those iron-fisted, authoritarian policies we saw take centre stage during the less commendable years of European history have unfortunately reared their ugly heads once more. Thankfully, however, only within a small, but discouragingly increasing, proportion of society. Nevertheless, these protests are merely stretching the upper limits of cultural difference, and as such, any meeting of minds seems unlikely as it stands.

Thankfully, however, a handful of organisations who have brought forward relatively creditable proposals. One Law for All have been campaigning for abolition on the following grounds:

Rights, justice, inclusion, equality and respect are for people, not beliefs. In
a civil society, people must have full citizenship rights and equality under the
law. Clearly, Sharia law contravenes fundamental human rights. In order to
safeguard the rights and freedoms of all those living in Britain, there must be
one secular law for all and no Sharia.

Additionally, Baroness Cox has also put forward a number of proposals in her Arbitration and Mediation Services (Equality) Bill, which saw its first reading in the House of Lords late May this year. She contended, among other proposals, that Arbitrators should not be given jurisdiction over family law matters, and principles of gender equality should be enshrined throughout the Act.

Although both causing controversy, such proposals are undeniably better fitted within 21st century Britain. However, that is not to say they should be acted upon. In fact, both can be construed as somewhat unappreciative of cultural sensitivities. It seems apparent that such provisions were made in relation to the general, arguably misguided, consensus of today. Thankfully, however, it is clear movement is in the right direction. Nevertheless, as they stand today, both have rather major teething issues.

It must not be overstated that the Arbitration Act 1996, although providing a platform to jump common law hurdles, also allows parties to circumvent religiously ignorant laws that may have previously proven troublesome. A key example is the dual marriage scenario. Samia Bano, in response to the Archbishop of Canterbury, underlines how “the secular space inhabited by English family law principles cannot bring about genuine resolution of matrimonial disputes for Muslims living in Britain”. Often British Muslims acquire a Nikah; a quasi-contract of marriage. Unfortunately, although there are a number of ways a religious divorce can be issued, each requires the intervention of an Imam or religious arbitrator. Arbitration clearly accommodates for such a demand, allowing women to obtain a divorce both in law and religion.

Additionally, as no formal distinction between law and religion stands within the UK, removing religious arbitration whilst retaining other laws, which clearly uphold multiculturalism rather than secularism, would undoubtedly create tension. Indeed, as iterated in an earlier article, any attempt to limit diversity proves difficult in a jurisdiction openly non-interventionist.

Secondly, as a signatory of the European Convention on Human Rights, the UK is under increasing pressure to submit to  the notion of religious autonomy in accordance with Article 9; the freedom of thought, conscience and religion. Thus, to say Sharia councils run contrary to fundamental human rights is somewhat misguided. On the other hand, faith-based arbitration can prove troublesome in relation to other articles. For instance, Sharia is often frowned upon because of its perceived imbalance and unequal power relations between sexes. The right to a fair trial and freedom from discrimination may both hold weight in this regard. Clearly, if any change is to be sought, the relevant conflicting articles must be balanced against one another.

Finally, any attempt to place limits upon the jurisdiction of faith-based tribunals would arguably push arbitration underground. Ontario, Canada, had a similar debate met with equal distaste in 2004. The debate was concluded with the Government rendering invalid any arbitration not “conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction”. Arguably this left the debate lying dormant, furthering unnecessary tensions, and pushing religious arbitration underground.

This begs the question, what can we do about the Arbitration Act 1996? At present there is little on offer. Any actionable change seems overshadowed by the overwhelming ignorance unveiling across Britain. The system needs to uphold asymmetric power relations and provide a recourse for those who feel their disputes have notbeen fairly resolved. However, courts are undoubtedly reluctance to adjudicate on the merits or sincerity of religious principles, customs, or practice. Judge Bingham in Zermalt Holdings SA v Nu-Life Upholstery Repairs Ltd [1985] 2 E.G.L.R. 14 for instance, emphasises how courts should not “approach [arbitration awards] with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults”but treat them as a lodestone in respect of party autonomy; their right to choose. Nevertheless, change is necessary, and the sooner the better.

Further reading:

Samia Bano, ‘In Pursuit of Religious and Legal Diversity: A response to the Archbishop of Cantebury and the “Sharia Debate” in Britain’ (ELJ, 2008)

Samia Bano, ‘An Exploratory Study of Shariah Councils in England with Respect to Family Law’ (UoR, 2012)

Urfan Khaliq, ‘The Accommodation and Regulation of Islam and Muslim Practices in English Law’ (ELJ, 2002)

Jessie Brechin, ‘A study of the use of Sharia law in religious arbitration in the United Kingdom and the concerns that this raises for human rights’ (ELJ, 2013)

Ahmed & Luk, ‘Religious Arbitration: A study of legal safeguards’ (Arbitration, 2010)

Also, in relation to the debate in Ontario, Canada:

Anna C Korteweg, ‘The Sharia Law Debate in Ontario’ (ISIM Review, 2006) (available online)

The Boyd Report

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Tagged: Discrimination, Family Law, Human Rights, Religion

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