Tuesday, 3 February 2009

How do you solve a problem like Sharia ?

On February 7th 2008 the Archbishop of Canterbury gave a radio interview and a speech suggesting that the introduction of elements of Sharia Law into Britain was “inevitable” and he ran into a hail of abuse and ridicule. Later in 2008 the Lord Chief Justice gave a similar speech suggesting that Sharia had a role to play in family disputes and a similar suggestion was made, though to less publicity, by the former Chairman of the Bar Mr Stephen Hockman QC. One year on I thought it would be worth looking at why the issue of Sharia Tribunals and their possible role in Britain is still a source of controversy and hostility.

Part of the problem undoubtedly arises from the fact that "Sharia Law" in its fullness covers both Criminal as well as Civil law and in the public mind therefore to non Muslims the word “Sharia” conjures up images of stoning and executions. Though there are some fanatics who would like to see Criminal Sharia law in Britain they are a small minority of British Muslims. The real issue that the Archbishop was looking at was the possible role of Sharia tribunals as a mechanism of Alternative Dispute Resolution (ADR) especially in relation to the settlement of Matrimonial and Family disputes.

The Archbishop in his speech said
"there are ways of looking at marital disputes, for example, which provide an alternative to the divorce courts as we understand them. In some cultural and religious settings they would seem more appropriate."
Whilst the LCJ said
"There is no reason why principles of Sharia Law, or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution."

This was then followed by Press reports that Sharia "Courts" were already operating in Britain in particular in the form of the Muslim Arbitration Tribunal (MAT) . The "revelation" that these "Courts" were having their Arbitration decisions (Fatwas ) enforced by the state Courts, in accordance with the Arbitration Act 1996 has led to campaigns to ban all Religious Tribunals from operating under the Arbitration Act. Supporters of these Sharia Tribunals have in their turn referred to the, long established,
Jewish Beth Din Courts and asked why Sharia Tribunals should be any more of a problem than the Beth Din

There are I think a number of reasons why the controversy has aroused such feelings amongst which is the fact that Sharia legal rulings are historically known as Fatwas, unfortunately since the notorious Fatwa issued by the Ayatollah Khomeni calling for the murder of Salman Rushdie this honourable legal term has wholly negative associations in the West. However a more fundamental problem I believe is that Muslims supporting the introduction of Sharia have failed to understand the historic western idea of the separate roles of religion and state and in addition have failed to understand fundamental principles of Jewish law. Britain, in common with the rest of Europe, has been culturally influenced by Christianity and the Christian concept of the separate roles of Church and State. A fundamental part of historic Christian teaching is based on the words of Jesus “Render unto Caesar that which is Caesars, and unto God that which is Gods’ (Mathew 22 v 21, Mark 12 v 17, Luke 20 v25) which meant that even when the Church was at the height of its power and influence Christianity accepted that it is the State which makes the law and the Church was duty bound to accept the legitimacy of that secular state law. The secular authorities being equally bound to respect the legitimacy and independence of the Church.

As an example, marriage in historic Christian belief is both a religious sacrament and a civil contract and for that reason a Christian priest or minister will not perform a religious marriage ceremony unless the requirements of the civil law are complied with at the same time. This could mean that a separate civil registrar of marriages is present, or that the priest or minister are themselves entitled to register the marriage. The aim is always to ensure that the marriage is valid in the eyes of the civil law, as well as being religiously valid. For entirely different historical and theological reasons Jewish law also accepts that a marriage must comply with the requirements of the civil law as well as religious law. Judaism has a principle of Dina d'malchuta dina
” (the law of the land is the law) and therefore a British Rabbi who is performing a Jewish religious marriage ceremony always ensures that the marriage is at the same time registered in accordance with the requirements of the Marriage Act.

On the same principle of respect for the legitimacy of the civil law the Catholic Church will not consider an application for the religious annulment of a marriage until a civil divorce has been obtained and Jewish Beth Din will not consider an application for a religious divorce until the civil divorce proceedings have been resolved.

This aspect of respect for the separate roles of civil and religious law does seem to be missing in many of the Muslim organisations in Britain. At the time of the Archbishops' speech many Muslim spokesmen stated that Muslim Marriage ceremonies were not being recognised by British law which is simply untrue. Any, and every, Mosque in this country has the right to register under the Marriage Act 1949 but only 120 have done so. Unofficial estimates I have been given suggest that only around one third of the Muslim Marriage ceremonies (Nikah) performed in Britain are registered under the Marriage Act, there is no legal reason for this, and the wife has no legal rights to property or inheritance. It also appears to be a practice that is unique to Islam, my information is that Sikh Gurdwaras and Hindu Temples have all registered under the Marriage Act so as to ensure that their marriage ceremonies are legally valid.

If a couple choose not to have a “legal marriage” that is, of course, their right but I do wonder how many couples performing Nikah ceremonies are actually aware that they are not being legally married. I also do wonder why Muslim organisations, such a the Muslim Council of Britain, do not state in clear term that Imams should not perform Nikah ceremonies unless their Mosque is registered under the Marriage Act. Such unregistered wedding ceremonies are in fact illegal under s75(2)(ii) of the Marriage Act and those involved could face up to 5 years imprisonment.

The failure to recognise the existence of British law goes further. In a recent BBC “Inside Out” documentary regarding the Shariah Council at the Birmingham Mosque a lady who had been married in the Sudan was granted an Islamic Divorce and she therefore left assuming she was now free to Marry . However since she had not gone to the British Courts for a Divorce she is in fact still legally married under British law because the law recognises the legal validity of foreign marriages. If that lady goes and remarries in Britain she faces the possibility that she could be charged with Bigamy and she might not have any right to inheritance should her new husband die.

Besides these specific legal problems concerning Muslim marriages I do believe that in their suggestions regarding the possible value of Shariah law in family disputes the Archbishop, the Lord Chief Justice and Shariah Courts are confusing two separate and distinct concepts namely Mediation and Arbitration.

The purpose of Mediation is to see if a legal dispute can be resolved by negotiation between the parties. The crucial point about mediation is that, even though most mediators are trained lawyers, Mediation does not rely upon the application of legal rules or the determination of legal rights or wrongs it aims instead at finding common ground between parties and a solution they can both live with.

Mediation may result in an agreement which can be subsequently presented to a Court and registered as a legal decision but a mediator cannot impose a mediation decision and should not give directions or express opinions on legal issues or likelihoods of success. mediation therefore leads to an agreement rather than a judgement and it is not, as such, regulated by statute. More pertinently a mediation agreement only has legal effect if it is ratified by a court which has to be satisfied that it is indeed an agreement between two parties who understand the legal consequences of what they have agreed to.

Arbitration by contrast is merely another form of trial before a "judge" who is not appointed by the state but is instead agreed to by the parties. Arbitration is especially used in business disputes usually in order to ensure that the "Judge" has specialist knowledge of the area of business in question. A building contract for example will often contain a clause providing for the appointment of an arbitrator who is either a qualified surveyor or architect.

Arbitration is regulated by statute and involves the parties signing an Arbitration agreement before the "trial" begins. The arbitrator can act in accordance with the rules of any legal system specified in the arbitration agreement including, of course, Shariah law and the ultimate "judgement" of the arbitrator can be registered with the civil courts and enforced in the same way as if it was a judgement of the ordinary civil courts. It is this aspect of civil courts enforcing arbitration judgements based on Shariah principles which has led to suggestions in the press that somehow Shariah law has been given "official" recognition.

However it is important to understand that the Arbitration Act does not extend to all areas of law, it does not cover criminal disputes and it does not extend to divorce of child care cases which is where the problems arise with the views of the LCJ "there is no reason why principles of Sharia Law, or any other religious code should not be the basis for mediation" . There is, in fact, every reason why the principles of Sharia Law should not be used as the basis for a mediation and that is because mediation does not involve the application of legal rules, whether religious or otherwise, it involves a search for a mutually acceptable compromise. If MAT, or any other organisation, is applying Shariah principles to a dispute then it is engaged in arbitration not mediation, the two are not the same and should not be treated as if they were the same.

The MAT website in part seems to be holding itself out as a mediation organisation
"A trial in a court necessarily involves a winner and a loser,……. This can be at disadvantage where there are reasons to maintain a good relationship after the verdict. An obvious example may include divorce and child custody cases…..Court hearings impose a solution on the parties without their agreement and which may need to be enforced. If the parties are able to negotiate a resolution between them, to which they both agree, this should be less of a predicament"

But a separate section of the website says
"MAT will therefore, for the first time, offer the Muslim community a real and true opportunity to settle disputes in accordance with Islamic Sacred Law"
Judging from its' rules of procedure as set out on its website MAT does not appear to distinguish between offering an arbitration service and offering mediation.

The practical effects of this confusion could be very important in the area of Family and child care cases which is the area where both the Archbishop and the LCJ saw Sharia as having a role to play. In the case of divorce one of the main decisions a Family Court has to decide is the custody and care of any children and such decisions have to be made by the court on the basis of an assessment of what is the "interests of the child". Since children share their parents and, since it is usually in a childs’ interests to keep in contact with both parents, mediation fills an important and valuable role in helping divorcees to reach custody and contact arrangements which they can both accept. In reaching such a mediated agreement there is no doubt that religious leaders could play an important role by appealing to the parents better nature and leading them to look at their responsibilities as parents rather than concentrating on their own negative feelings towards their former partner; however that is not the same as applying Sharia law rules relating to child custody even if those Sharia rules are regarded as "sacred".

Sharia Law rules on child custody can be quite cut and dried and were indeed described by Judges in the House of Lords as "arbitrary and discriminatory" in the case of M (Lebanon) v Home Secretary [2008] UKHL 64. As a general rule in Sharia Law jurisdictions the custody of a child over seven years of age is given to the father so what is a Family Court judge to do if presented with a "mediation agreement" brokered by MAT which gives custody of the children to the father ? If it truly is a mediated agreement between two parents deciding what is the best interests of the child then in normal circumstances the court would register it and enforce it however the question is whether it really is a "mediated" agreement or is does it involve acquiescence by the woman in a Sharia law rule which does not explicitly consider the interests of the child ?.

If it is acquiescence in a Sharia Law rule as opposed to a properly mediated settlement then the Family Court cannot accept the "mediation" agreement because it is not truly a mediation agreement and because enforcement of such a Sharia judgement would be contrary to s6(1) of the Human Rights Act 1998. Under s6(1) "It is unlawful for a public authority [which includes a Court] to act in a way which is incompatible with a Convention right" ie a right under the European Convention on Human Rights and in the case of Refah Partisi v Turkey BAILII: [2003] ECHR 87 the European Court of Human Rights stated
“Sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable….. Sharia, 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”
Similarly in M (Lebanon) the House of Lords decided that Shariah Law rules on child custody were incompatible with the Human Rights protected by the Convention.

I appreciate that I am not a Muslim however I seriously question whether those calling for Shariah Tribunals in Britain are actually acting in the best interests of British Muslims. If one looks at the 5 pillars of Islam which are the basis of the Islamic faith all of the five pillars are already legal in Britain and none of them require the creation of any form of officially recognised Sharia Court or Tribunal, why then is any such recognition required ? The Archbishop and others opened a profound debate but I think they failed at two levels to make their case, firstly they failed to understand how Alternative Dispute Resolution actually works, but more importantly they failed to ask the question, "Why Shariah ?", what advantage would British Muslims obtain from having a separate legal system which deprives them of their rights as British citizens

Until the Archbishop and other supporters of Sharia Tribunals ask themselves what is the problem that Sharia Tribunals are supposed to address, speeches proposing the extension of Sharia will continue to generate controversy which brings no benefit to British Muslims and unnecessarily exacerbate an already fragile relationship between British Muslims and their Non Muslim neighbours.