The Shariah Court Debate

Shariah Councils are not Shariah Courts!  This is the first of several misrepresentations of the nature and function of Shariah Councils in Britain.

A court is of course the judicial apparatus of the ruling State.  The appointments of personnel are organised by the state and thereafter the judgements of the court are then enforced by the state.  History shows that whenever former rulers dispute the legitimacy of the court holding them on trial, for example King Charles I of England or Saddam Hussein of Iraq, their objections were all ignored.  This was because their former leaderships’ consent was not required to legitimise the courts they subsequently saw themselves facing, rather a different Government was going to enforce the court’s decision (King Charles and Saddam Hussein were both executed), whether they liked it or not.

Within the Muslim community, if a Shariah Council rules in favour of a woman and then the man concerned chooses to ignore the ruling, the Shariah Council cannot take any action to enforce their decision.  This is because Shariah Council are dealing with what are known as civil matters rather than dealing with legal matters.  Committing a crime that is a legal matter would either be dealt with by the Magistrate or Crown Court.  Shariah Councils are primarily only dealing with Muslim divorces.  Therefore, participation with every aspect of the Shariah Council can only be completely consensual.  

Parallel Legal System

But you cannot have two legal systems running alongside each other!  This is another point of criticism that has been made.

The Football Association is a governing body that passes all sorts of rules and regulations.  It even enforces them with players being banned and Football Clubs being fined.  However, nobody accuses the Football Association of running a legal system in parallel with the British legal system.

There are numerous councils and associations that operate in the UK, on examination they all work because the participants are in affect consenting to how the council or associations operates, even if they end up disagreeing with a member’s viewpoint.  In fact, nobody would dare to suggest that any of these associations run any sort of parallel legal system, because the idea is so ridicules.

Safeguarding

A further point of concern that is mentioned when discussing Shariah Councils is whether or not they are safeguarding women.  For example, it is propagated that there is a danger that vulnerable women which are being abused or are at risk of abuse by their husbands, are ‘forced’ to remain in their marriage.  

Certainly, safeguarding is something we should not become complacent about.  However realistic concerns around the Shariah Councils having enough measures (and/or enough competence), does not necessitate the hysterical accusations that Shariah Councils are an immediate threat to women’s safety or undermining women’s empowerment.   In fact, it is patronising that those involved with a service aimed at women wanting an Islamic divorce are so dispassionate.  The scrutiny of adequate measures to ensure women are safeguarded and protected from imminent danger are very distinct from the conjecture that there is a current total failure.  It should also be noted that at any time a woman is free to contact the Police or Social Services. 

It is because of safeguarding women that these Shariah Council came into existence in the first place.

A Muslim devotes their life to God’s cause, this is well known.  A Muslim is careful about what they eat, how they dress, even how they speak to another person.  Therefore, nobody would be surprised that a Muslim has to get their sexual relationship sanctioned by God, otherwise the act would constitute as a sin.   So, if a Muslim marriage must take place (separate from a British Legal marriage) in accordance to Islamic traditions, then a Muslim divorce would also be required to be in line with Islam.  If a separation between a couple has NOT been sanctioned by God, then as far as the Muslims are concerned it is not a divorce.  If one member of the couple then began another sexual relationship with a third party this second relationship could potentially be sinful.  

Under Islam, a man can exercise his own authority to divorce his wife.  A wife can ask her husband for a divorce and if he agrees, again under his authority, he can grant her the divorce she wishes for.  However, what does a Muslim woman do if the husband refuses the divorce?  The Shariah gives plenty of grounds for a woman to have her request sanctioned, thereby over-riding the husband’s objections.  Under Islam, this over-riding of the husband’s authority is done by the Judge using Shariah Law.  Across Britain, it is the Muslim Community that sanctions the authority of these Shariah Councils to determine divorce.  This is where there is similarity to what happens in the Jewish Community with Beth Dins. 

So in effect, what has happened in this Country is that men have given consent for other men to overrule their own authority.  In other words, it is men that are safeguarding women and women’s rights.

The Shariah Council allow women to continue with their lives free of any burden that they felt obliged that they were still living under.  In other words a British Court may grant a couple a divorce (which would still be required if the Muslim couple had registered their marriage under British Law), however without the sanction from the God that the women chose to believe in, they would under practical purposes still in effect be married.  Again, Shariah Councils came into existence to solve this problem.   

Parliamentary Committee

The following points were submitted to the Home Affairs Committee by Amin Al-Astewani, Lecturer in Law, Lancaster University: 

• Religious tribunals have existed in Britain for hundreds of years. These tribunals function on a non-statutory basis and are not considered part of the civil court system

• This includes Roman Catholic Church tribunals, whose decisions are not recognized at civil law.  The only exception to this rule is the ecclesiastical courts belonging to the Church of England, which function on a statutory basis and are considered a formal part of the English judicial system.

• The default legal position is that the decisions of Shariah councils have no legal force or jurisdiction.  Members of the community who approach them for a religious divorce do so completely voluntarily and cannot be summoned to do so.

And Dr Ghena Krayem, Senior Lecturer, Faculty of Law, The University of Sydney also submitted

• The research indicates that the Muslim community in Australia does not seek to set up a parallel legal system but rather that it is seeking out ways in which the informal community processes can fit within the existing family law structure. This ensures that all legal obligations are complied with and Australian Muslims are adhering to what they perceive to be important aspects of their faith.

The ultimate testimony about the fairness of the Shariah Councils are from those Muslim women that are defending their existence against the two disturbing enquiries that were ordered by Prime Minster Theresa May.  For example, the Muslim Women’s Network UK said the inquiries risked treating women like “political footballs”.  Yes, these Muslim women are asking for improvements and have expressed some areas of concern, but clearly they are not sanctioning any proposals to replace or abolish them.  In fact, they are determined that they stay. 

One Land One Law

Labour MP Naz Shah speaking on BBC Radio 4’s “Today” programme, who sits on the Home Affairs Committee, expressed some support for these Shariah Councils but also said “You cannot enforce and have a second paralegal system in this country.

“As a British law-maker, I am very clear we have one law, and that law is that of the British court”.

From where in the Muslim Community has this request for Shariah Councils to be formerly recognised under UK law been made?  Again, another problem highlighted that simply does not exist.  However, the principle of one legal system existing in one land is an important point to bring up.

Under an Islamic State only the Shariah Law would be used.  Any call to have a parallel legal system to run alongside the State’s implementation of the Islamic Shariah would also be rejected.  However, Islam allows the Jews and the Christian to take care of their internal civil matters using their respected religious practices, this includes marriage and divorce.  So a Christian marrying or divorcing a Christian would not have to get permission from any Islamic authority. Whereas, if a Muslim stole from a Jew, then the matter would be heard under the Shariah Legal System.  And if a Christian Woman were to be abused and required protection, then the State would again intervene.  It is Islam that enshrines that such rights can be practised by other religious communities living under Islamic jurisdiction.  In fact, as Muslims, it is one of the principles we are proud about.

Faux Pas 

None of the difficulties that have been raised about this subject have any credibility.  In summary 

• The calling of two legal systems does not exist
• Nothing stops women going to the UK Government for protection
• If women are being grossly unfairly treated, then why are women (clearly well-educated and informed) calling for the Councils to remain?
• There is no hypocrisy on the part of Islam allowing a different community to deal with internal civil matters based on their separate religious rules.

It is worth mentioning at this point that no Muslims seeks to justify women being abused by men.  Nor is this a denial that such abuses take place within the Muslim Community.  Such abusive treatment contradicts Shariah and thereby Muslims who seek to live by Allah’s decree will always hate the violations of Islam, no matter what form or by what reason those violations take place.

So, allow me to repeat my earlier assertion, that none of the difficulties that have been raised about this subject have any credibility even upon casual scrutiny.  So why has the status and existence of the Shariah Councils become so abruptly challenged?  

Final Say

Well there is one area that I have so far not covered.  It is the fact the word Shariah is being used.  If these councils were named ‘The Asian Association to Protect Women from Abusing Men’ would people be so intimidated by them?  I suspect not.  However, I do not want the Shariah Councils to change their names as some token of appeasement.  Why should they?  Rather the point is that the prejudice and hatred being vented towards Islam and Shariah is what has been exposed here.  

In fact, it is so blatantly clear I do not need to elaborate. Plus, I am also male, so it is only right that a woman has the final say about that!

“Everyone wants to listen to Muslim women when highlighting their terrible experiences.    However, when it comes to the solutions, everyone thinks they know what is best for them,”

“I do feel that there are people who are anti-faith, particularly anti-Islam, who are using women’s rights as a guise, wanting to abolish Sharia councils”.  

Gohir Chair of Muslim Women’s Network UK

November 2016 

O ye who believe! Take not into your intimacy those outside your ranks: They will not fail to corrupt you. They only desire your ruin: Rank hatred has already appeared from their mouths: What their hearts conceal is far worse. We have made plain to you the Signs, if ye have wisdom.  Al Imran 3:118