Following my two earlier Blogs of 24 January 2015 and 23 June 2014 there has been a further case in Malaysia involving the question of whether Christians, and other non Muslims, are entitled to use the word "Allah" as the word signifying "God"
The Malaysian Court of Appeal has issued a judgment in an ongoing case involving CD's seized by Malaysian Customs Officers from the luggage of a Malaysian Christian, Ms Jill Ireland Lawrence Bill. The CD's included ‘Cara Hidup Dalam Kerajaan Allah’ (How to live in God’s Kingdom), ‘Hidup Benar Dalam Kerajaan Allah’ (Right living in God’s Kingdom) and ‘Ibadah Yang Benar Dalam Kerajaan Allah’ (True faith in God’s Kingdom) and therefore all used the word "Allah" to refer to "God" hence their seizure.
The Court of Appeal itself is based on a fairly arcane point of law namely that the Customs Officer involved did not have the necessary legal authority to seize and keep these CD's which were seized in 2008. The decision therefore does seem to keep open the possibility that Government Officials in Malaysia, with the appropriate authority can still seize Christian CD's, Magazines, Bibles etc which refer to "God" as "Allah"
The Malaysian Courts system has therefore not been in any hurry to decide the issues in this case indeed the fundamantal issue of principle is still not decided if indeed it ever will be. The earlier decision in the "Catholic Herald" case does show that the Malaysian Courts accept that the Government of Malaysia can restrict the use of the word "Allah" and that decision is likely to be used against Ms Ireland if she continues with her claim
So far I have not been able to find a transcript of the Judgment so this Blog is based on reports of the case at Lapido Media (an invaluable source of worldwide religious news), Malaysia University Legal News, and The Malaysia Star
Showing posts with label Sharia. Show all posts
Showing posts with label Sharia. Show all posts
Wednesday, 24 June 2015
Saturday, 24 January 2015
Allah for Muslims Only ? - 2
On 23 June last year I blogged about a case in Malaysia where the Government had prevented the Catholic Herald of Malaysia from using the word "Allah" in its Malay publication. In its Judgment Roman Catholic Archbishop of Kuala Lumpur v Negeri & Ors Civil Application No.: 08-690-11/2013 the Federal Court of Malaysia, which is the highest Court in the Country, noted [para 30]
" the reasons given by the Minister in his Affidavit In Reply, it is clear that he was concerned with national security and public order."
the Federal Court in the same paragraph endorsed the view of the Court of Appeal
"the usage of the word ‘Allah' particularly in the Malay version of the Herald, is without doubt, do have the potential to disrupt the even tempo of the life of the Malaysian community."
In its Judgement the Federal Court basically took a very narrow and technical view of its powers of Judicial Review and regarded the decision as one that fell within the area of Executive discretion.
The Catholic Church recently applied to the Federal Court to reconsider its Judgment on the basis that it had not properly taken account of the provisions of the Constitution of Malaysia relating to religious freedom. Not surprisingly perhaps the Federal Court having looked at its own decision decided it had been right all along and so the possibility of any further review of the Federal Court decision has ended see News Links HERE, HERE, HERE, There appears to be no further legal route for the Catholic Church to appeal this ban on it using the word "Allah" for God in Malay services and publications and there are already attempts to try to stop the Catholic Herald publishing anything in Malay.
As an outsider this decision by the Malaysian Government to try to control the use of the word "Allah" seems bizarre. Arab Christians use "Allah" and I was recently in Malta, an extremely Catholic country, where in services God is routinely called "Alla". In a strange way to try to keep Allah as a word only to be used by Muslims actually diminishes "Allah" who ceases to be "the God", the one true creator of the Universe and instead becomes merely the God of Muslims on a par with Zeus or Odin.
I wonder however whether this idea of restricting the use of the word "Allah" will spread within the Muslim World. A particular danger may be that the Ahmadiyya Muslims will be targeted and prevented from using the word "Allah" in their services. They are not regarded as "true" Muslims by most Sunni and Shia groups and are already prevented from describing themselves as Muslims in many countries
" the reasons given by the Minister in his Affidavit In Reply, it is clear that he was concerned with national security and public order."
the Federal Court in the same paragraph endorsed the view of the Court of Appeal
"the usage of the word ‘Allah' particularly in the Malay version of the Herald, is without doubt, do have the potential to disrupt the even tempo of the life of the Malaysian community."
In its Judgement the Federal Court basically took a very narrow and technical view of its powers of Judicial Review and regarded the decision as one that fell within the area of Executive discretion.
The Catholic Church recently applied to the Federal Court to reconsider its Judgment on the basis that it had not properly taken account of the provisions of the Constitution of Malaysia relating to religious freedom. Not surprisingly perhaps the Federal Court having looked at its own decision decided it had been right all along and so the possibility of any further review of the Federal Court decision has ended see News Links HERE, HERE, HERE, There appears to be no further legal route for the Catholic Church to appeal this ban on it using the word "Allah" for God in Malay services and publications and there are already attempts to try to stop the Catholic Herald publishing anything in Malay.
As an outsider this decision by the Malaysian Government to try to control the use of the word "Allah" seems bizarre. Arab Christians use "Allah" and I was recently in Malta, an extremely Catholic country, where in services God is routinely called "Alla". In a strange way to try to keep Allah as a word only to be used by Muslims actually diminishes "Allah" who ceases to be "the God", the one true creator of the Universe and instead becomes merely the God of Muslims on a par with Zeus or Odin.
I wonder however whether this idea of restricting the use of the word "Allah" will spread within the Muslim World. A particular danger may be that the Ahmadiyya Muslims will be targeted and prevented from using the word "Allah" in their services. They are not regarded as "true" Muslims by most Sunni and Shia groups and are already prevented from describing themselves as Muslims in many countries
Thursday, 10 July 2014
Sharia :Law in India
A fascinating case before the Supreme Court of India which deals with a question which is also debated in the UK namely the role and status of Sharia Tribunals
In the case of Madan v India SCIndia 7 Jul7 2014 an application was made for a declaration that the activities of Shariah tribunals were unlawful and that the various bodies sponsoring them should be disbanded.
As is usual in these cases the Judge was provided with what he described as "the galore of obnoxious Fatwas " with some pretty appalling examples being quoted. The basis of the case was said to be that the
"All India Muslim Personal Law Board ... is striving for the establishment of parallel Muslim judicial system in India. According to the petitioner, adjudication of disputes is essentially the function of sovereign State, which can never be abdicated or parted with"
The Judge accepted that Sharia Tribunals existed and were issuing Fatwas but disagreed that they therefore constituted a parallel Muslim judicial system. He said that a Fatwa
"has no legal sanction and can not be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it, their act would be illegal. Therefore, the grievance of the petitioner that Dar-ul-Qazas and Nizam-e-Qaza are running a parallel judicial system is misconceived."
However the Judge did not give a blank cheque to Sharia Tribunals to do as they wish. He was concerned by one particular case where a wife who had allegedly been raped by her father in law then had a Fatwa issued dissolving her marriage. The Fatwa had not been applied for by either the wife or her husband but by a journalist and the Judge did condemn the issuing of a Fatwa in such circumstances
"Issuance of Fatwa on rights, status and obligation of individual Muslim, in our opinion, would not be permissible, unless asked for by the person concerned or in case of incapacity, by the person interested. Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore, would be absolutely uncalled for. It shall be in violation of basic human rights. It cannot be used to punish innocent. No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as dehumanising force.
.......
no Dar-ul-Qazas or for that matter, any body or institution by any name, shall give verdict or issue Fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it."
In the case of Madan v India SCIndia 7 Jul7 2014 an application was made for a declaration that the activities of Shariah tribunals were unlawful and that the various bodies sponsoring them should be disbanded.
As is usual in these cases the Judge was provided with what he described as "the galore of obnoxious Fatwas " with some pretty appalling examples being quoted. The basis of the case was said to be that the
"All India Muslim Personal Law Board ... is striving for the establishment of parallel Muslim judicial system in India. According to the petitioner, adjudication of disputes is essentially the function of sovereign State, which can never be abdicated or parted with"
The Judge accepted that Sharia Tribunals existed and were issuing Fatwas but disagreed that they therefore constituted a parallel Muslim judicial system. He said that a Fatwa
"has no legal sanction and can not be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it, their act would be illegal. Therefore, the grievance of the petitioner that Dar-ul-Qazas and Nizam-e-Qaza are running a parallel judicial system is misconceived."
However the Judge did not give a blank cheque to Sharia Tribunals to do as they wish. He was concerned by one particular case where a wife who had allegedly been raped by her father in law then had a Fatwa issued dissolving her marriage. The Fatwa had not been applied for by either the wife or her husband but by a journalist and the Judge did condemn the issuing of a Fatwa in such circumstances
"Issuance of Fatwa on rights, status and obligation of individual Muslim, in our opinion, would not be permissible, unless asked for by the person concerned or in case of incapacity, by the person interested. Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore, would be absolutely uncalled for. It shall be in violation of basic human rights. It cannot be used to punish innocent. No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as dehumanising force.
.......
no Dar-ul-Qazas or for that matter, any body or institution by any name, shall give verdict or issue Fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it."
Monday, 23 June 2014
Allah For Muslims Only ?
The Federal Court of Malaysia, which is the highest Court in the Country, has issued a judgment supporting a ban by the a state Government on the Catholic Herald of Malaysia preventing it from using the word "Allah" as a title for "God" and ending a years-long legal battle that has caused religious tensions in that Muslim-majority country.
The Catholic Church had been seeking to reverse the government ban preventing it referring to God by the Arabic word “Allah” in the local Malay-language edition of the Herald newspaper but a seven-judge panel in the administrative capital Putrajaya has supported an earlier ruling in the Court of Appeal that only Muslim publications could use the word "Allah". The Court of Appeal Judgment was the case of Negeri and Ors v Roman Catholic Archbishop of Kuala Lumpur No:. W-01-1-2010 14 October 2013 also Here & Here with official Press Summary.
The Federal Court Judgment will be added to this site once it becomes publicly available: NOW AVAILABLE Roman Catholic Archbishop of Kuala Lumpur v Negeri & Ors, Civil Application No.: 08-690-11/2013
The dispute began in 2007 when the Home Ministry threatened to revoke the publishing permit of the Herald for using the Arabic word in its Malay-language edition. The church launched a court case to challenge the directive, arguing “Allah” had been used for centuries in Malay-language Bibles and other literature to refer to “God” outside of Islam but the authorities said that using “Allah” in non-Muslim literature could confuse Muslims and entice them to convert which is a crime in Malaysia. This is in accordance with the Constitution of Malaysia clauses 3 & 11
3(1) islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation
11(4) State law and in respect of the Federal territories of Kuala Lumpur, Labuan and putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of islam
An example of the enforcement of Article 11(4) is is the Selangor Non-Islamic Religions (control of propagation amongst Muslims) Enactment 1988 which states
In December of 2009, the High Court of Malaysia decided that the use of the word "Allah" by the Catholic (and other Christian Churches) was constitutional which led to incidents of violence against Christian Churches. In October of 2013, the Court of Appeals overturned the 2009 decision stating
"the usage of the name 'Allah' is not an integral part of the faith and practice of Christianity."
and that is clearly also the opinion of the Federal Court of Malaysia
An interesting question is whether this case could have implications for Christians, and other Non-Muslims in other Muslim Majority Countries. "Allah" is the common name for "God" in Arabic and has been used by Arab Christians since the Muslim Conquests of the Middle East. The Christian and Muslim concepts of what "God" or "Allah" is or how he manifests himself to mankind differs but the same word is used. It is not inconceivable however that Non Muslims in Arab and other countries could now find that their right to use the word "Allah" is increasingly called into question
A helpful summary of the history of the case was displayed in the Malay Mail Online which I reproduce below (c) Malay Mail
The Catholic Church had been seeking to reverse the government ban preventing it referring to God by the Arabic word “Allah” in the local Malay-language edition of the Herald newspaper but a seven-judge panel in the administrative capital Putrajaya has supported an earlier ruling in the Court of Appeal that only Muslim publications could use the word "Allah". The Court of Appeal Judgment was the case of Negeri and Ors v Roman Catholic Archbishop of Kuala Lumpur No:. W-01-1-2010 14 October 2013 also Here & Here with official Press Summary.
The Federal Court Judgment will be added to this site once it becomes publicly available: NOW AVAILABLE Roman Catholic Archbishop of Kuala Lumpur v Negeri & Ors, Civil Application No.: 08-690-11/2013
The dispute began in 2007 when the Home Ministry threatened to revoke the publishing permit of the Herald for using the Arabic word in its Malay-language edition. The church launched a court case to challenge the directive, arguing “Allah” had been used for centuries in Malay-language Bibles and other literature to refer to “God” outside of Islam but the authorities said that using “Allah” in non-Muslim literature could confuse Muslims and entice them to convert which is a crime in Malaysia. This is in accordance with the Constitution of Malaysia clauses 3 & 11
3(1) islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation
11(4) State law and in respect of the Federal territories of Kuala Lumpur, Labuan and putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of islam
An example of the enforcement of Article 11(4) is is the Selangor Non-Islamic Religions (control of propagation amongst Muslims) Enactment 1988 which states
4(1) A person commits an offence if he persuades, influences or incites a Muslim---
(a) to be inclined towards any non-Islamic religion, or
(b) to become a follower or member of a non-Islamic religion; or
(c) to forsake or disfavour the religion of Islam.
(2) A person who commits an offence under subsection (1) shall, on conviction, be liable to imprisonment for a term not exceeding one year or to a fine not exceeding ten thousand ringgit or to both.
(3) It shall not be a defence to a charge under subsection (1) that the Muslim was not affected by anything said or done by the accused to him.
9(1) A person commits an offence if he-
(a) in any published writing; or
(b) in any public speech or statement; or
(c) in any speech or statement addressed to any gathering of persons; or
(d) in any speech or statement which is published or broadcast and which at the time of its making he knew or ought reasonably to have known would be published of broadcast,uses any of the words listed in Part I of the Schedule, or any of its derivatives or variations, to express or describe any fact, belief, idea, concept, act, activity, matter, or thing of or pertaining to any non-Islamic religion.
One of the "words listed in Part 1 of the Schedule" is "Allah"
"the usage of the name 'Allah' is not an integral part of the faith and practice of Christianity."
and that is clearly also the opinion of the Federal Court of Malaysia
An interesting question is whether this case could have implications for Christians, and other Non-Muslims in other Muslim Majority Countries. "Allah" is the common name for "God" in Arabic and has been used by Arab Christians since the Muslim Conquests of the Middle East. The Christian and Muslim concepts of what "God" or "Allah" is or how he manifests himself to mankind differs but the same word is used. It is not inconceivable however that Non Muslims in Arab and other countries could now find that their right to use the word "Allah" is increasingly called into question
A helpful summary of the history of the case was displayed in the Malay Mail Online which I reproduce below (c) Malay Mail
Friday, 28 February 2014
Prosecution in Australia of Unregistered Muslim Marriage
The issue of unregistered Muslim Marriages is something I have Blogged on in the past see http://religionlaw.blogspot.co.uk/2010/02/muslim-marriages-4.html where I give links to my other Blogs on this subject.
I have consistently said that in my view those who perform unregistered Muslim Marriages should be prosecuted under s75 of the Marriage Act 1949 which makes it a criminal offence to solemnise a Marriage in England and Wales otherwise than in accordance with the Act.
There is a similar, though rather more straightforwardly worded provision in s101 of the Australian Marriage Act 1961.
In Australia it has been reported that an Imam is to face trial for conducting an unregistered Marriage though in that case the alleged criminality is aggravated by the fact that the "Bride" is reported to have been 12 at the time.
It will be interesting to watch this case and see if it might inspire the English Police to start to enforce our Marriage Act in the same way as the Australian Police are enforcing theirs
I have consistently said that in my view those who perform unregistered Muslim Marriages should be prosecuted under s75 of the Marriage Act 1949 which makes it a criminal offence to solemnise a Marriage in England and Wales otherwise than in accordance with the Act.
There is a similar, though rather more straightforwardly worded provision in s101 of the Australian Marriage Act 1961.
In Australia it has been reported that an Imam is to face trial for conducting an unregistered Marriage though in that case the alleged criminality is aggravated by the fact that the "Bride" is reported to have been 12 at the time.
It will be interesting to watch this case and see if it might inspire the English Police to start to enforce our Marriage Act in the same way as the Australian Police are enforcing theirs
Tuesday, 1 October 2013
An Imam as an Employee
In my Blog on 17 May 2013 I discussed the case of President of the Methodist Conference v Preston [2013] UKSC 29 where the Supreme Court decided that, on the facts, a Methodist Minister was not an employee but was an office holder. I had noted at the time
"On the basis of the [Preston] decision it seems clear that Catholic, Orthodox or Anglican Diocesan Priests are not Employees though they might be if they were employed as Chaplains by, for example the NHS. For other religions with a much more decentralised structure such a many Free Churches, Synagogues or Mosques it is quite possible that their religious Ministers could be employees."
This view was based in part on comments in the case by Lady Hale who had noted at para 36
"It is normal for rabbis to be employed by a particular synagogue, for example."
I had actually not noticed the earlier 2012 case of Ur- Rehman v Doncaster Jahia Mosque [2012] UKEAT 0117_12_1008 where it had been accepted by both the Employment Tribunal and EAT that the Imam in question was an employee.
In a very interesting article Nabilla Mallick looks at the question "Are Imams Employees Of Mosques" and reaches the clear view that they are. The article looks at a an Employment Tribunal case Hasan v Redcoat Community Centre ( East London Employment Tribunal) which was decided that the Imam was an employee. He could bring a claim for unfair dismissal though he lost on the facts.
In view of recent tragic events in Kenya it is perhaps worth noting that the reason the Imam was sacked by the Committee was apparently the political nature of his Khutbahs (Friday Sermons).
The Article reads (c) Nabila Mallick
"An Imam performs the duty of offering prayer for the congregation in mosques. Essentially mosques are a centre of community worship where Muslims perform ritual prayer and where historically they also gathered for political, social and cultural functions. The function of the mosque is summarised by the 13th Century jurist Ibn Taymiyah as a place of gathering where prayer was celebrated and where public affairs were conducted. Services connected to marriages or birth are not usually performed inside the mosque. The rites that are important and integral to the function of many churches such as confession, penitence and confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
[1] All India Imam Organisations and others v Union of India and others no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court
[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.
[3] Hadith are sayings of the Prophet.
[4] Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale provided authoritative account of the running of Protestant churches and the engagement of those in its service.
[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435
[6] Employment status in relation to statutory rights - December 2002
[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12
[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.
[9] Mosque committees consider themselves guided by the Spiritual nature of the Imam’s duties and the edicts of the Quran. However, this is not inconsistent with UK Employment Law ( Quran – ‘give just measure and weight, do not withhold from the people the things that are their due’ [11:85] – fulfill your covenants [5:1]- fulfill your engagements for every engagement will be enquired into [17:34]). Therefore terms of engagement must reflect the true position of the Imam and be detailed. "
"On the basis of the [Preston] decision it seems clear that Catholic, Orthodox or Anglican Diocesan Priests are not Employees though they might be if they were employed as Chaplains by, for example the NHS. For other religions with a much more decentralised structure such a many Free Churches, Synagogues or Mosques it is quite possible that their religious Ministers could be employees."
This view was based in part on comments in the case by Lady Hale who had noted at para 36
"It is normal for rabbis to be employed by a particular synagogue, for example."
I had actually not noticed the earlier 2012 case of Ur- Rehman v Doncaster Jahia Mosque [2012] UKEAT 0117_12_1008 where it had been accepted by both the Employment Tribunal and EAT that the Imam in question was an employee.
In a very interesting article Nabilla Mallick looks at the question "Are Imams Employees Of Mosques" and reaches the clear view that they are. The article looks at a an Employment Tribunal case Hasan v Redcoat Community Centre ( East London Employment Tribunal) which was decided that the Imam was an employee. He could bring a claim for unfair dismissal though he lost on the facts.
In view of recent tragic events in Kenya it is perhaps worth noting that the reason the Imam was sacked by the Committee was apparently the political nature of his Khutbahs (Friday Sermons).
Hasan v Redcoat Community Centre , the East London Employment Tribunal
- See more at:
http://www.no5.com/news-and-publications/publications/237-are-imams-employees-of-mosques-/#sthash.e2XVWQs2.dpuf
The Article reads (c) Nabila Mallick
"An Imam performs the duty of offering prayer for the congregation in mosques. Essentially mosques are a centre of community worship where Muslims perform ritual prayer and where historically they also gathered for political, social and cultural functions. The function of the mosque is summarised by the 13th Century jurist Ibn Taymiyah as a place of gathering where prayer was celebrated and where public affairs were conducted. Services connected to marriages or birth are not usually performed inside the mosque. The rites that are important and integral to the function of many churches such as confession, penitence and confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
[1] All India Imam Organisations and others v Union of India and others no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court
[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.
[3] Hadith are sayings of the Prophet.
[4] Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale provided authoritative account of the running of Protestant churches and the engagement of those in its service.
[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435
[6] Employment status in relation to statutory rights - December 2002
[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12
[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.
[9] Mosque committees consider themselves guided by the Spiritual nature of the Imam’s duties and the edicts of the Quran. However, this is not inconsistent with UK Employment Law ( Quran – ‘give just measure and weight, do not withhold from the people the things that are their due’ [11:85] – fulfill your covenants [5:1]- fulfill your engagements for every engagement will be enquired into [17:34]). Therefore terms of engagement must reflect the true position of the Imam and be detailed. "
An
Imam performs the duty of offering prayer for the congregation in
mosques. Essentially mosques are a centre of community worship where
Muslims perform ritual prayer and where historically they also gathered
for political, social and cultural functions. The function of the mosque
is summarised by the 13th Century jurist Ibn Taymiyah as a
place of gathering where prayer was celebrated and where public affairs
were conducted. Services connected to marriages or birth are not usually
performed inside the mosque. The rites that are important and integral
to the function of many churches such as confession, penitence and
confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.
Please click here to view Nabila Mallick's profile.
- See more at: http://www.no5.com/news-and-publications/publications/237-are-imams-employees-of-mosques-/#sthash.zDwCA2Mg.dpuf
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.
Please click here to view Nabila Mallick's profile.
[1]
All India Imam Organisations and others v Union of India and others
no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court
[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.
[3] Hadith are sayings of the Prophet.
[4]
Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale
provided authoritative account of the running of Protestant churches
and the engagement of those in its service.
[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435
[6] Employment status in relation to statutory rights - December 2002
[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12
[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.
[9]
Mosque committees consider themselves guided by the Spiritual nature of
the Imam’s duties and the edicts of the Quran. However, this is not
inconsistent with UK Employment Law ( Quran – ‘give just measure and
weight, do not withhold from the people the things that are their due’
[11:85] – fulfill your covenants [5:1]- fulfill your engagements for
every engagement will be enquired into [17:34]). Therefore terms of
engagement must reflect the true position of the Imam and be detailed.
An
Imam performs the duty of offering prayer for the congregation in
mosques. Essentially mosques are a centre of community worship where
Muslims perform ritual prayer and where historically they also gathered
for political, social and cultural functions. The function of the mosque
is summarised by the 13th Century jurist Ibn Taymiyah as a
place of gathering where prayer was celebrated and where public affairs
were conducted. Services connected to marriages or birth are not usually
performed inside the mosque. The rites that are important and integral
to the function of many churches such as confession, penitence and
confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.
Please click here to view Nabila Mallick's profile.
- See more at: http://www.no5.com/news-and-publications/publications/237-are-imams-employees-of-mosques-/#sthash.zDwCA2Mg.dpuf
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.
Please click here to view Nabila Mallick's profile.
[1]
All India Imam Organisations and others v Union of India and others
no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court
[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.
[3] Hadith are sayings of the Prophet.
[4]
Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale
provided authoritative account of the running of Protestant churches
and the engagement of those in its service.
[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435
[6] Employment status in relation to statutory rights - December 2002
[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12
[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.
[9]
Mosque committees consider themselves guided by the Spiritual nature of
the Imam’s duties and the edicts of the Quran. However, this is not
inconsistent with UK Employment Law ( Quran – ‘give just measure and
weight, do not withhold from the people the things that are their due’
[11:85] – fulfill your covenants [5:1]- fulfill your engagements for
every engagement will be enquired into [17:34]). Therefore terms of
engagement must reflect the true position of the Imam and be detailed.
Saturday, 14 January 2012
Oklahoma and Sharia Law Ban - Part 2
Back in November 2010 I Blogged about an amendment to the Constitution of Oklahoma which banned any recognition of Sharia Law in Oklahoma Courts even in cases involving with Arbitration or the application of Foreign Law.
I predicted in that Blog that the Ban would not stand up to legal and constitutional challenge and that is what appears to be the view of the US 10th Circuit Court of Appeals which in the case of Awad v Ziriax has continued a ban on the Amendment going into effect.
Muneer Awad, the executive director of the Council on American-Islamic Relations in Oklahoma, sued to block the law from taking effect, arguing that the Amendment violated his First Amendment rights.
A three-judge panel of the 10th Circuit agreed that on the face of it the Amendment did have an effect on Mr Awads Constitutional rights. Awad argued that the ban on Islamic law would likely affect every aspect of his life as well as the execution of his will after his death. The appeals court pointed out that Awad made a “strong showing” of potential harm.
Interestingly the Court also noted that the backers of the amendment acknowledged they did not know of any instance when an Oklahoma court applied Sharia law or used the legal precepts of other countries.
The case now returns to federal court in Oklahoma City for a full trial to determine the constitutionality of the proposed amendment.
I predicted in that Blog that the Ban would not stand up to legal and constitutional challenge and that is what appears to be the view of the US 10th Circuit Court of Appeals which in the case of Awad v Ziriax has continued a ban on the Amendment going into effect.
Muneer Awad, the executive director of the Council on American-Islamic Relations in Oklahoma, sued to block the law from taking effect, arguing that the Amendment violated his First Amendment rights.
A three-judge panel of the 10th Circuit agreed that on the face of it the Amendment did have an effect on Mr Awads Constitutional rights. Awad argued that the ban on Islamic law would likely affect every aspect of his life as well as the execution of his will after his death. The appeals court pointed out that Awad made a “strong showing” of potential harm.
Interestingly the Court also noted that the backers of the amendment acknowledged they did not know of any instance when an Oklahoma court applied Sharia law or used the legal precepts of other countries.
The case now returns to federal court in Oklahoma City for a full trial to determine the constitutionality of the proposed amendment.
Friday, 24 June 2011
Should religious law be curbed ? - Guardian Debate
The Guardian are running a debate on Religious Courts inspired by the Bill introduced by Baroness Cox
I have contributed an article as have others and there will no doubt be other articles and comments yet to come which I will add to this Blog as they appear
Should religious law be curbed?
Nesrine Malik: What is Lady Cox's bill really about?
Musleh Faradhi: Sharia bill is based on a false premise
Neil Addison: Lady Cox's bill is not so controversial
I have contributed an article as have others and there will no doubt be other articles and comments yet to come which I will add to this Blog as they appear
Should religious law be curbed?
Nesrine Malik: What is Lady Cox's bill really about?
Musleh Faradhi: Sharia bill is based on a false premise
Neil Addison: Lady Cox's bill is not so controversial
Sunday, 12 June 2011
Arbitration and Mediation Services (Equality) Bill
Baroness Caroline Cox a member of the House of Lords has introduced into Parliament the Arbitration and Mediation Services (Equality) Bill (HL Bill 72) which is an attempt to deal with some of the perceived problems involving Shariah Tribunals which I have blogged about before and which were covered in a report by the Think Tank Civitas for which I wrote the introduction. However the Bill itself never once mentions Shariah and the changes it proposes would apply to all forms of Arbitration. Because it is a Private Members Bill rather than a Government Bill it probably has little chance of becoming law but it has certainly reignited the debate on Shariah Tribunals in Britain
The Bill on first sight appears to be a well thought out attempt to deal with the problems in a a targeted way and it proposes amendments to the Equality Act 2010, Arbitration Act 1996, Family Law Act 1996, Criminal Justice and Public Order Act 1994 and the Courts and Legal Services Act 1990.
The main proposal is in s4 of the Bill which states in unequivocal terms that Arbitration cannot deal with Criminal and Family law matters. That is in fact a statement of the existing case law which has not previously been set out in statute.
Section 5 of the Bill similarly seeks to deal with the situation where Shariah Rulings have been enforced by the Civil Courts in the pretence that they reflect mediated agreements rather than acquiescence in directed judgments and it requires Family Courts to satisfy themselves properly that a mediation agreement is indeed made by both parties freely and with full knowledge of their specific legal rights. The misuse of Mediation agreements as a backdoor way to introduce Shariah into UK Family Law is again a problem I have Blogged about previously.
The amendments to the Equality Act complement the amendments to the Arbitration Act by making discrimination on grounds of sex unlawful in Arbitration in particular by making it unlawful to treat the evidence of a woman as automatically of less value than the evidence of a man or vice versa and also making it unlawful to Arbitrate in inheritance disputes on a basis that presupposes that women should automatically inherit less than men or vice versa. These changes are clearly specifically aimed at Shariah Tribunals because of the historic Shariah law principles that the evidence of a woman is worth only half that of a man. Once again though this proposal is clearly aimed at Shariah Tribunals the word Shariah is never mentioned and the basic principle of equality is difficult to argue against.
Particularly interesting and imaginative however is the proposal in s1(4) of the Bill which would amend the so called "public sector equality duty" in s149 of the Equality Act which gives public authorities a specific duty to take steps to minimise inequality. The Bill proposes that public authorities should be under a legal duty to take steps to prevent polygamous marriages and to inform parties in unregistered religious marriages that they have few legal rights compared to a spouse in a registered marriage. I wonder if this might even lead Police and other authorities to start implimenting s75 Marriage Act 1949 which makes it illegal to perform unregistered marriage ceremonies. In a conference I attended recently I was surprised when one of the Muslim delegates delegates quite openly stated that the reason Muslim Marriages were not being registered was in order to permit Polygamy.
I have somewhat more concerns over sections 6 and 7 which deal with proposed changes to the criminal law. I frankly cannot see the point of the proposal in s6 since s51 Criminal Justice and Public Order Act 1994 already deals with the intimidation of witnesses in cases of domestic violence and I have never seen any suggestion to the contrary. I also have problems with s7 which proposes to make it a criminal offence where anyone
(a) falsely purports to be exercising a judicial function or to be able to make legally binding rulings, or
(b) otherwise falsely purports to adjudicate on any matter which that person knows or ought to know is within the jurisdiction of the criminal or family courts.I don't have any major problems with (a) though if any person was falsely claiming to be exercising a judicial function and receives payment for it that would already be an offence of obtaining by false pretences. I do however have real problems with (b) since it could make it very difficult for religious courts such as Jewish Beth Dinn or Catholic Marriage Tribunals both of which deal with purely religious Divorces (Jewish) or Annulments (Catholic) and do so only after the Civil Courts have dissolved the marriage. There is also the possibility that a strict definition of the proposed offence could even prevent employers holding internal disciplinary hearing dealing with alleged criminal acts by employees such as theft at work. On balance I think (b) goes too far but I am prepared to accept (a)
The major question is I suppose whether Caroline Cox is in fact interfering in Freedom of Choice ie the principle that people should have the freedom to choose private adjudication of their disputes without the law interfering. That is certainly what the opponents of her Bill will say and was in fact a major point that we discussed at a conference on Shariah I attended earlier in the year. The consensus we arrived at was that if the adjudication, whether Arbitration or Mediation, is ultimately going to be registered with the Civil Courts and enforced by them then the Civil Law does have a right to become involved and to say what legal rules or principles should apply to the making of a decision which the State is being asked to enforce.
Monday, 29 November 2010
Oklahoma and Sharia Law Ban
Say what you like about America but its political system does allow the public to get involved in debate and decision making in a way that is very difficult this side of the Atlantic. One of the latest examples of this was the decision by citizens of Oklahoma to amend their State Constitution so as to ban Sharia law.
The legal background to the wording of the amendment makes interesting reading because Oklahoma law requires that any proposed amendment to the State Constitution needs to be accompanied by an explanation of the amendment and its purpose. The Ballot as put to the Voters of Oklahoma read as follows.
International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons. The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties. Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.
"C. The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. "
After being passed the Amendment was immediately the subject of a legal case by the Council on American Islamic Relations and that legal case will no doubt drag on for several years. In the meantime the Constitutional Amendment has been put on hold and does not form part of the Oklahoma Constitution.
Most of the arguments against the Oklahoma Amendment have concentrated on the line that it is a breach of the 1st Amendment to the US Constitution which says
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
There is a similar provision in Article 1.2 of the Oklahoma Constitution which says
§ 2. Religious liberty - Polygamous or plural marriages.
Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.
The question for the Courts will undoubtedly be whether the proposed amendment amounts to a defacto interference with the "free exercise of religion" and/or "a religious test for the exercise of civil or political rights". It seems to me that the amendment as passed clearly does that in so far as it prevents the use of Sharia law even with regard to purely internal regulation of Muslim organisations or the personal use of Sharia in Arbitration. However I suspect that the amendment can be struck down on grounds that do not require the Courts to look to closely at the religious aspects of Sharia. The word in the amendment provided the law of the other state does not include Sharia Law, in making judicial decisions. can be argued to be in breach of Article IV.1 of the US Constitution which requires that "full faith and credit shall be given in each state to the ... judicial proceedings of every other state" ie if another State recognises Sharia in part of its law Oklahoma has no right to disagree. Furthermore the refusal to recognise International law goes against several references in the US Constitution to the "law of nations" as being recognised by the Constitution.
It will be interesting to see how the case develops but legally speaking I do not give much credence to the survival of the amendment as passed.
and th
The legal background to the wording of the amendment makes interesting reading because Oklahoma law requires that any proposed amendment to the State Constitution needs to be accompanied by an explanation of the amendment and its purpose. The Ballot as put to the Voters of Oklahoma read as follows.
PRELIMINARY BALLOT TITLE FOR STATE QUESTION NO. 755
This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law. International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons. The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties. Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.
"C. The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. "
After being passed the Amendment was immediately the subject of a legal case by the Council on American Islamic Relations and that legal case will no doubt drag on for several years. In the meantime the Constitutional Amendment has been put on hold and does not form part of the Oklahoma Constitution.
Most of the arguments against the Oklahoma Amendment have concentrated on the line that it is a breach of the 1st Amendment to the US Constitution which says
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
There is a similar provision in Article 1.2 of the Oklahoma Constitution which says
§ 2. Religious liberty - Polygamous or plural marriages.
Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.
The question for the Courts will undoubtedly be whether the proposed amendment amounts to a defacto interference with the "free exercise of religion" and/or "a religious test for the exercise of civil or political rights". It seems to me that the amendment as passed clearly does that in so far as it prevents the use of Sharia law even with regard to purely internal regulation of Muslim organisations or the personal use of Sharia in Arbitration. However I suspect that the amendment can be struck down on grounds that do not require the Courts to look to closely at the religious aspects of Sharia. The word in the amendment provided the law of the other state does not include Sharia Law, in making judicial decisions. can be argued to be in breach of Article IV.1 of the US Constitution which requires that "full faith and credit shall be given in each state to the ... judicial proceedings of every other state" ie if another State recognises Sharia in part of its law Oklahoma has no right to disagree. Furthermore the refusal to recognise International law goes against several references in the US Constitution to the "law of nations" as being recognised by the Constitution.
It will be interesting to see how the case develops but legally speaking I do not give much credence to the survival of the amendment as passed.
and th
Monday, 12 July 2010
Sharia Law in Britain - How Significant ?
The One Law For All Campaign has recently held a demonstration in Trafalgar Square opposing the spread of Sharia Based Tribunals in Britain and has issued a booklet Sharia Law in Britain a Threat to One Law for All and Equal Rights. Though I have sympathy with some of the objections raised by the campaign I do consider that the issue is rather more complex and subtle than they suggest
Following the demonstration Maryam Namazie who directs the campaign wrote an Article in The Guardian and I was asked to write one in response I hope that both articles are a worthwhile contribution to this complex debate that can inspire very strong feelings on both sides
Maryam Namazie - The Guardian 5 July 2010
Neil Addison - The Guardian 8 July 2010
Following the demonstration Maryam Namazie who directs the campaign wrote an Article in The Guardian and I was asked to write one in response I hope that both articles are a worthwhile contribution to this complex debate that can inspire very strong feelings on both sides
Maryam Namazie - The Guardian 5 July 2010
Neil Addison - The Guardian 8 July 2010
Wednesday, 3 February 2010
Muslim Marriages (4)
I have just come off the phone having participated in a debate on the BBC Asian Network about Muslim Marriages in England.
The point I made is the same one I have been making in this Blog for some time now namely that there are no legal problems preventing Muslim Marriages being registered under English Law all that needs to happen is for the Mosque to register under the Marriage Act 1949
See previous Blogs
September 2009
June 2009
Feb 2009
The point I made is the same one I have been making in this Blog for some time now namely that there are no legal problems preventing Muslim Marriages being registered under English Law all that needs to happen is for the Mosque to register under the Marriage Act 1949
See previous Blogs
September 2009
June 2009
Feb 2009
Tuesday, 8 September 2009
Muslim Marriages (Again)
I cannot remember which politician it was who said that when you reach the point when you are sick to the back teeth of repeating something that is when people start listening. I am certainly sick and tired of discussing the subject of unregistered Muslim marriages (Nikah's) so hopefully some people will begin to listen.
The subject was raised recently on the August 23 entry of the Spirit21.co.uk Blog run by Shelina Zahra Janmohamed who I have met at a City Circle meeting. I like Shelina's Blog which makes some fascinating and thought provoking comments on the nature of true religious belief but I had to disagree with her recent Blog concerning Muslim Marriage which was reproduced in The Times faithOnline Blog. Basically Shelina was talking about the problems faced by British Muslim wives who go through a Nikah ceremony but whose marriage is not registered under The Marriage Act 1949 , they are, in the eyes of the law, mere co-habitants and do not enjoy the legal protections enjoyed by wives whose marriage is registered under the Marriage Act.
Shelinas solution to the problem is to suggest that the law should be changed so as to give legal recognition to the Nikah but I strongly disagree, there is absolutely no problem with the law as it stands the only problem is that Imans and Mosques are ignoring the provisions of the Marriage Act and, arguably, committing a criminal offence for which they could be sentenced to 5 years imprisonment (s75 of the Act makes it a criminal offence to perform a marriage ceremony for a marriage that is not registered under the Act)
The Marriage Act, as it stands, recognises 3 basic types of Marriage ceremony
(i) A purely secular Marriage before a Registrar in a Registry office
(ii) A purely Secular Marriage before a Registrar in "Approved premises" eg Hotels, stately Homes etc
(iii) A Religious Marriage ceremony in a registered place of worship where a Registrar is present
Regarding option (iii) there is a slight exemption in the case of the Church of England because the CofE is the established Church Anglican Priests are also Registrars by virtue of their office. That particular status however is unique to Anglican Priests which means that Catholic priests, Jewish Rabbis, Sikh Granthis etc all have to arrange for a Registrar to be present in order for their religious marriages to be registered and that legal obligation doesn't seem to be causing them any problems. In practice most registrars at Religious Marriages are volunteer members of the Congregation who have been approved and trained by the local Superintendent Registrar, for example my Mum, after she retired, became a Registrar at her local Church and she, like thousands of other volunteers in Churches throughout the country, was responsible for attending Marriages in the Church, getting the certificates signed by the Happy Couple, and then sending the appropriate documentation off to her local Registration office. Any Mosque can similarly register itself under The Marriage Act 1949 and arrange for a member of its congregation to act as Registrar at any Nikah ceremony but only 120 Mosques have registered under the Act and, as Shelina confirms in her Blog, the majority of Muslim Marriges in Britain are not being registered under the Act.
So I repeat the questions I have asked Shelina, I have asked in this Blog, I have indeed asked Imans and to which I have not yet had an answer
"Why is it that only Islam seems to have a problem with the Marriage Act ?",
"Why is it that Imans and Mosques are continuing to perform Nikah ceremonies which are not registered under the Marriage Act"
"Why are the the MCB and MINAB not making it a requirement that their members operate in accordance with the law ?"
Having asked questions I will then answer the question that I am asked, "Why do I think this issue is important, and why do I continue to speak and write about it ?" The reason is twofold, firstly if Muslim marriages are not being registered under the law then Muslim wives, in particular, are being deprived of their natural rights as British citizens, they are entering into a relationship which they think is a lawful marriage and it is not.
More pertinently the idea that the law is treating Muslim Marriages unfairly is simply not true and it is the sort of untruth which encourages feelings of victimisation and alienation from society which are the breeding ground of radicalism and terrorism. If you read the comments section in the Times faithOnline Blog there were many who believed Shelinas suggestion that Muslims were being treated unfairly and so a controversy has been created where none should exist. Discrimination in the law is a bad thing and if the law was treating Muslims unfairly then it would need to be changed but where the law is fair and is treating religions properly and with respect then that fact needs to be stated loudly and clearly, Religions have enough real problems in modern society without creating imaginary problems where none exist.
The subject was raised recently on the August 23 entry of the Spirit21.co.uk Blog run by Shelina Zahra Janmohamed who I have met at a City Circle meeting. I like Shelina's Blog which makes some fascinating and thought provoking comments on the nature of true religious belief but I had to disagree with her recent Blog concerning Muslim Marriage which was reproduced in The Times faithOnline Blog. Basically Shelina was talking about the problems faced by British Muslim wives who go through a Nikah ceremony but whose marriage is not registered under The Marriage Act 1949 , they are, in the eyes of the law, mere co-habitants and do not enjoy the legal protections enjoyed by wives whose marriage is registered under the Marriage Act.
Shelinas solution to the problem is to suggest that the law should be changed so as to give legal recognition to the Nikah but I strongly disagree, there is absolutely no problem with the law as it stands the only problem is that Imans and Mosques are ignoring the provisions of the Marriage Act and, arguably, committing a criminal offence for which they could be sentenced to 5 years imprisonment (s75 of the Act makes it a criminal offence to perform a marriage ceremony for a marriage that is not registered under the Act)
The Marriage Act, as it stands, recognises 3 basic types of Marriage ceremony
(i) A purely secular Marriage before a Registrar in a Registry office
(ii) A purely Secular Marriage before a Registrar in "Approved premises" eg Hotels, stately Homes etc
(iii) A Religious Marriage ceremony in a registered place of worship where a Registrar is present
Regarding option (iii) there is a slight exemption in the case of the Church of England because the CofE is the established Church Anglican Priests are also Registrars by virtue of their office. That particular status however is unique to Anglican Priests which means that Catholic priests, Jewish Rabbis, Sikh Granthis etc all have to arrange for a Registrar to be present in order for their religious marriages to be registered and that legal obligation doesn't seem to be causing them any problems. In practice most registrars at Religious Marriages are volunteer members of the Congregation who have been approved and trained by the local Superintendent Registrar, for example my Mum, after she retired, became a Registrar at her local Church and she, like thousands of other volunteers in Churches throughout the country, was responsible for attending Marriages in the Church, getting the certificates signed by the Happy Couple, and then sending the appropriate documentation off to her local Registration office. Any Mosque can similarly register itself under The Marriage Act 1949 and arrange for a member of its congregation to act as Registrar at any Nikah ceremony but only 120 Mosques have registered under the Act and, as Shelina confirms in her Blog, the majority of Muslim Marriges in Britain are not being registered under the Act.
So I repeat the questions I have asked Shelina, I have asked in this Blog, I have indeed asked Imans and to which I have not yet had an answer
"Why is it that only Islam seems to have a problem with the Marriage Act ?",
"Why is it that Imans and Mosques are continuing to perform Nikah ceremonies which are not registered under the Marriage Act"
"Why are the the MCB and MINAB not making it a requirement that their members operate in accordance with the law ?"
Having asked questions I will then answer the question that I am asked, "Why do I think this issue is important, and why do I continue to speak and write about it ?" The reason is twofold, firstly if Muslim marriages are not being registered under the law then Muslim wives, in particular, are being deprived of their natural rights as British citizens, they are entering into a relationship which they think is a lawful marriage and it is not.
More pertinently the idea that the law is treating Muslim Marriages unfairly is simply not true and it is the sort of untruth which encourages feelings of victimisation and alienation from society which are the breeding ground of radicalism and terrorism. If you read the comments section in the Times faithOnline Blog there were many who believed Shelinas suggestion that Muslims were being treated unfairly and so a controversy has been created where none should exist. Discrimination in the law is a bad thing and if the law was treating Muslims unfairly then it would need to be changed but where the law is fair and is treating religions properly and with respect then that fact needs to be stated loudly and clearly, Religions have enough real problems in modern society without creating imaginary problems where none exist.
Subscribe to:
Posts (Atom)
