On Sharia Council and Muslim Arbitration Tribunals: Frequently Asked Questions and Answers
Updated 4 July 2016
The accommodation of arbitration systems to govern private and family matters had led, arguably, to the greatest human rights violations of minority women in the UK.
This document aims to respond to some of the most frequently asked questions about Sharia bodies in the UK. They are being published with an open letter by an unprecedented number of women’s rights campaigners and organisations to the government raising serious concerns about it limited inquiry into Sharia courts.
For more information on the testimonials, please contact Pragna Patel (Southall Black Sisters), Gita Sahgal (Centre for Secular Space) or Gina Khan and Maryam Namazie (One Law for All). Contact details below.
1. What are Sharia Councils and Muslim Arbitration Tribunals (MATs)?
- As far as we know, the first Sharia Council was established in 1986, by a collection of different fundamentalist organisations such as the Jamaat e Islami, the Muslim Brotherhood and Ahle Hadith. Since then, their numbers have grown. Some are situated in mosques, others are run as independent bodies or charities. They charge for their services, which centre on adjudicating on family matters, such as divorce, child custody, and inheritance.
- A new book, ‘Women and Shari’a Law, the Impact of Legal Pluralism in the United Kingdom’, by Elham Manea (I.B.Tauris, 2016 ) reveals that Sharia councils are applying fundamentalist versions of Sharia law, which they claim are mandatory for Muslims to follow. In other words, not only do their decisions undermine decisions made by courts in Britain, but they are also more fundamentalist than laws in their countries of origin.
- Although they are not formally recognised as law making bodies, some Sharia councils have been given recognition as charities. They have therefore been endorsed by the state as providing a ‘public benefit’.
Muslim Arbitration Tribunals (MATs) are classified as arbitration tribunals under the Arbitration Act 1996 (UK). Accordingly, the decisions of MATs are legally binding, provided that both parties to the dispute agree to give it the power to rule on their case. In Canada, protests against the introduction of Muslim Arbitration Tribunals ensured that family law was ruled outside the jurisdiction of the Tribunals. As legal aid is shrinking and Sharia courts come under greater scrutiny, we expect to see more bodies promising arbitration, counselling and mediation services.
2. Are Sharia Councils and MATs a parallel legal system?
We define parallel legal systems as follows:
Parallel legal systems exist where the same people, and/or a variety of different disputes are subject to a variety of laws with potentially different outcomes.
Parallel legal systems are judicial systems that have different ‘personal laws’, for family matters for different religions. If Britain regularises Sharia Courts, it will have adopted one of the worst legacies of colonial governance.
The term may also be used for informal systems that claim that their decisions have the force of law. The government claims that Sharia Councils are not a parallel system as they are not recognised and their decisions do not have the force of law. But we argue that the Sharia councils have created a parallel ‘legal’ system. Many of them call themselves ‘courts’, appoint ‘judges’, issue ‘judgements’, and give ‘orders’. They do not simply advise or give their opinions. They also issue documents such as divorce papers that many people think are legally valid. They have encouraged the view that civil divorces are not sufficient, and that women must come before a Sharia council to receive a religious divorce.
Moreover, Muslim Arbitration Tribunal decisions act under the Arbitration Act 1996 (UK) and whilst their decisions should not oust the jurisdiction of Family courts in the UK, many women may not seek justice in civil courts due to pressure to conform and abide by religious rulings and due to lack of knowledge of their legal rights.
3. What is legal pluralism?
Anthropologists tend to use this term to describe different kinds of law – the law of the state and the customary laws and norms of ‘the community’. Manea argues that the UK is a case of legal pluralism that has detrimental effects. She says that we must consider the consequences of introducing ‘special laws’ for specific groups. Some legal academics, anthropologists and even important figures such as the former Archbishop of Canterbury and the former Chief Justice have argued for a ‘weak pluralism’: that more space and recognition should be given to religious law in family matters. They see no danger in legal pluralism or parallel systems as long as they are confined to family matters. However, many women’s rights advocates argue that legal pluralism leads to a stratified citizenship. Legal pluralists ignore structural discrimination. The existence of parallel ‘courts’ and tribunals which operate on different principles to English law will cause gaps in legal protection. That is why it is important to examine the impact of parallel structures as well as what they do.
4. Aren’t Sharia Councils in Britain Compliant with British law?
As personal testimonies show, many women face humiliating, dangerous and discriminatory treatment at the hands of Sharia bodies. Even women who have received civil divorces under English law, are told that they need a Sharia divorce. The Sharia Councils often fail to inform their ‘clients’ that the English civil divorce is acceptable in many relevant jurisdictions (such as Pakistan and Bangladesh). Our personal testimonies show that a 2012 mapping exercise carried out for the Justice Ministry that stated that Sharia councils do not seek to replace civil divorce is at best, a half-truth. More importantly, gender discrimination is outlawed in Britain. Yet many Sharia bodies do not regard the woman as an adult; she has to have a male guardian who may be a small male child. Her testimony is worth half that of a man’s. Sharia courts do not comply with the best practices of British family courts especially in relation to domestic violence and child protection.
5. What areas of law do Sharia courts regulate?
Sharia courts mostly deal with matters involving family law (such as divorce, inheritance, polygamy and repudiation). Some Sharia bodies also interfere in criminal law in matters related to domestic violence and marital rape risking further divergence from legal standards and good practice in the UK. They have also been known to deal with child custody. The involvement of the police, social services and other public bodies in working with Sharia courts should be investigated.
6. What laws are they following?
Our evidence and Manea’s findings suggest that the Sharia bodies are following some of the most regressive versions of Islamic law. One testimony suggests that they follow the Council for Islamic Ideology (CII) – Pakistan’s Sharia law body. Others may refer to decisions made by the Indian Personal Law Board. Both these bodies are trying to reverse gains made for women’s rights.
At this moment, for example, in Pakistan, there is a battle between the women’s movement who are trying to pass measures to protect women from gender based violence and the Pakistani CII which has proposed its own ‘women’s protection bill’ following a campaign by the Jamaat e Islami. This Bill proposes beating women lightly and many other measures which severely curtail women’s rights such as freedom of movement and right to work.
The Indian Personal Law Board refuses to accept that the formal courts may adjudicate questions of Muslim law as they claim their source of law is divine. They have refused to end one of the worst forms of divorce ‘triple talaq’ where a woman may be divorced by a simple pronouncement of ‘talaq’ ( meaning I divorce you,) three times. In these examples, women are losing out because of the power and impunity of the Sharia enforcers who are part of a formally recognised parallel legal system.
7. The Councils say they are helping women who want a religious divorce. What’s wrong with that? That is not a threat to the United Kingdom?
We are sceptical that the Sharia bodies are simply responding to a need. Sharia courts which do not treat women as adults or as citizens and are highly prescriptive about women’s gender roles are not likely to be simply filling a gap. Rather, our testimonies show that they create a problem and then announce they have solution for it. In this way, they gain acceptance for Sharia law and make money in the process.
Many women do approach Councils for a religious divorce, as women’s rights groups report a rise in the rate of religious marriages. These women may be in ‘marital captivity’. They do not have a valid civil marriage, so cannot seek a civil divorce. The inquiry must look at the ways in which the Councils have encouraged religious marriages without civil marriage (thus contributing to trapping women in a marriage that they cannot end), have in effect encouraged polygamy and encouraged the idea women will face penalties for ‘zina’ or adultery if they do not obtain a religious divorce.
8. What threat do the Sharia courts pose to the United Kingdom?
Our evidence shows that Sharia courts are discriminatory. Women are treated as minors without rights. Many of the principles of Sharia law are directly inconsistent with British law and public policy. Even if some women choose to attend Sharia courts, many are pressured by their families to go to the Sharia courts and adhere to their unfair decisions. Other religious bodies will be demanded if the government endorses Sharia in any way. Religious fundamentalist organisations will benefit, while any sense that Britain is a society that abides by the rule of law will diminish. This poses a threat, not only to the future society of the UK but also to the national legal system of England and Wales, and also Scotland. That is why we support the retention of the Human Rights Act based on the European Convention on Human Rights and demand that legal aid be restored to family disputes. Without these measures, BME women will be at particular risk in cases of domestic abuse, marital breakdown and child custody disputes.
9. Are Sharia courts necessary in order for Muslims to abide by their faith?
No. In the same way that individuals decide to become a follower of Islam, they can decide to follow the sacred text of the Quran themselves. It is a personal decision. Religious leaders at Mosque are available for guidance. Involuntary imposition of laws is not needed for any other religion and should not be needed for Islam. Overall, the best way for the state to deal with religious differences is a morally neutral vocabulary that we all share: a morality that is not based on religion. This does not preclude individuals from following religious precepts in their personal, everyday lives. As Alia Hogben of the Canadian Council for Muslim Women said, ‘Sharia law is not the Sixth pillar of Islam’.
10. In this atmosphere of hatred against minorities and foreigners, why are you raising this issue?
As people from refugee and migrant backgrounds ourselves, we oppose racism and fundamentalism. They are both far right movements. Both movements promote hatred and inequality. We oppose gender apartheid as much as we oppose racial apartheid. Muslim women are the targets of both.
This was authored by Gita Sahgal of Centre for Secular Space.
For more information, please contact:
Southall Black Sisters
020 8571 9595
Centre for Secular Space
079 7271 5090
Gina Khan and Maryam Namazie
One Law for All
077 1916 6731