Sharia Subjects VI: Concurrent jurisdiction would be used to coerce average believers

Ali Eteraz (writer): It would be prudent to understand the various arguments made in favor of recognizing Sharia in the UK. Doing so will be helpful to those wishing to oppose it.

First, a majority of British Muslims are just fine with the legal system. They consider it an Islamic duty to obey the laws of the land. They have learned to balance the requirements of their personal faith with their public obligations and limitations. For example, when they get married they go to city hall and afterwards go to the mosque for a second ceremony. When they get divorced they go to court and then they do an Islamic divorce. If these Muslims find certain policies problematic, they participate in the political process to try and change them. This is, in my opinion, the easiest and most sensible position for Muslims to adopt. It also leads to better citizenship. The development of this position augurs well for the development of a "minority fiqh" - a jurisprudence for Muslims living in majority non-Muslim areas.

Among Muslims that do want elements of Sharia recognized, no one wants to apply criminal law. Most British Muslims consider the hudud inhumane. They don't publicly condemn Islamic criminal law because of embarrassment.

What the pro-Sharia-Muslims are asking for is the right to be able to apply elements of Sharia in the areas of family and inheritance law. However, there is no uniformity in their perspective. I've discerned at least three distinct tendencies which I've called: millet Muslims, concurrent-jurisdiction Muslims and arbitration Muslims.

Millet Muslims: The millet system is a relic from the Ottoman Empire, still applied in various parts of the Muslim world (even though the Ottomans themselves repealed it via 19th century Tanzimat reforms). The millet system is an altogether different way of political organization. The state recognizes people on the basis of their religion. Religious communities are free to tax themselves and adjudicate their matters based on their religious law. Because modern India - a secular democracy - grants its Muslims a baby version of millet, some immigrant Muslims have come to believe the same can be granted in the secular West.

Concurrent-jurisdiction Muslims want the de-facto and extra-judicial Islamic courts that exist now - like the Islamic Sharia Council - to have concurrent jurisdiction with the secular courts in the areas of family and inheritance law. This might mean that a Muslim woman that gets an Islamic scholar to grant her a divorce would not then need to go before a civil court. This group's argument is based on hardship and inconvenience.

Arbitration Muslims argue that if and when two Muslims have a dispute related to family or inheritance law, and both parties agree to stipulate that their third-party arbitrator be an expert in Islamic law, then they should be free to go to him or her. They argue that if corporations and individuals can agree to be bound under almost any kind of alternate dispute resolution mechanism why can't devout Muslims choose someone who is an expert in Islamic law to resolve their family law matters? They further argue that going to an arbitrator will ease the burden on the civil courts.

Millet Muslims are beyond fringe and are best ignored. On the surface Arbitration Muslims seem rather benign because the arbitrator appears to be "filtered" via the bar councils and law schools. But when you look at the intricacies of Islamic family law you have to ask whether women are going to get a fair hearing. It is not as if classical Islamic family law has undergone some monumental modernization over the past two hundred years. The reforms that have taken place - like abolition of polygamy in Tunisia and fairness in custody matters in some countries - has occurred in Muslim states where the legislature can change Islamic law. The British Parliament is not going to legislate Islamic law all of a sudden (nor should it). Custody, divorce and support still mostly favour the man. Even a suit and tie wearing Cambridge educated arbitrator could ascribe to some pretty hoary versions of Islamic law. Average Muslims are not aware of the intricacies of Islamic family law themselves such that they can screen the expert or have some kind of cross-reference.

On top of that, by law most third-party arbitrations cannot be appealed. Judgments are binding and final. In fact, the entire idea of arbitration is that you get a quick and decisive verdict in return for putting your trust in the hands of the expert. Should we allow experts to make judgments about a legal system that is not standardized, in a setting where there are no appeals? The arbitration scheme may, in its broad outlines, be consisted with British Law, but it is neither functional nor practical. Call me a pessimist, but in a non-Muslim country where the legislature cannot codify the Sharia rules, it never will be.

Concurrent-jurisdiction Muslims are where the real action is. Most Muslims that favor the application of some form of Sharia fall in this category. They want the extra-judicial courts, such as the Islamic Sharia Council, to become meaningfully integrated into the system.

A paper by Pascale Fournier, a Harvard-trained lawyer and academic, commissioned by the Canadian Council of Muslim Women (which I can make available via email) reveals that a majority of the cases the Islamic Sharia Council of UK - which, let us not forget, is an extra-judicial court - deal with Muslim women that get a civil divorce from a British court but then come to the ISC to get a certificate that renders their divorce legitimate from an Islamic perspective.

This is troubling. It has the effect of creating a competition between religion and state. But more than that, it's problematic because women are socially coerced into coming to these courts.

In most Muslim communities the social reality is that a woman that doesn't get an Islamic divorce is stigmatized. This is the simple fact that forces women to go to the extra-judicial courts in the first place. So, even if a woman has a divorce from the civil court, they try to get a religious certificate that will prove that they have been properly divorced under Islam. If they fail to do this, they effectively suffer social death. Without the Islamic divorce they cannot remarry. They may also be considered adulteresses within their communities. I have seen such things happen personally.

A legally recognized Islamic Sharia Council type of court will look to have cases dealing with Muslims referred to it by the British civil courts. This looks and tastes exactly like the beginnings of the Islamisation program in Pakistan and Malaysia, which led to the creation of a parallel Sharia system in those countries (which many of us are trying to roll back now). In other words, we're dangerously veering back to the millet model. I have repeatedly stated that the favorite trick of Islamists is not to deny democracy, but to (often naively) create extra-democratic institutions - usually courts or enclaves of scholars - that mete out an anachronistic version of Islamic law.

Second, it is a plain fact that Islamic courts apply their own, often arbitrary standards, picking and choosing from the past. This is no way for law to function.

Third, what usually happens is that under a rule called faskh, in exchange for a divorce, a woman has to return her dower (which might have been her only economic crutch). This is unfair.

Fourth, the scholars are simply respected people from the community who were neither elected nor appointed. They are not accountable to anyone. Nor are women welcome to become judges. Ayesha Khan points out even more problems with these courts: "Women do not have the same rights afforded to them under sharia law as they do under the British legal system. Their testimony still carries only half the weight of a man's. And an all-male, overworked, under-funded sharia council does not make a welcoming place for many of the women who approach it." She also adds that divorces from the court can take years. This is the case of the "limping marriage" where a woman is legally divorced but on account of her husband or the Islamic court's recalcitrance has to continue living with her husband.

Ultimately, giving official recognition to courts like the Islamic Sharia Council leads to an entrenchment of the patriarchy that under-girds the aforementioned problems. Society needs to move towards eliminating anachronistic versions of patriarchy (this includes the Jewish orthodox courts where women are treated with the same sort of latent contempt), not reaffirming them.

Courts like the Islamic Sharia Council are outgrowths of local Muslim communities which, in turn, exert an enormous amount of what I call "piety-pressure" upon average believers. Subtle black-mailing and intimidation will become further entrenched if Islamic courts are given concurrent status. Sharia bullies will not only be protected by God, but by State as well, just as they are in Islamist regimes around the world. Concurrent jurisdiction for Muslims should be opposed. The position adopted by the vast majority of British Muslims is the correct one: Sharia should remain personal law. Those Muslims who do not adopt this position should be persuaded to change their views, not be compromised with.

Ali Eteraz is a writer, lawyer and activist. His book, Children of Dust, set in Pakistan, is forthcoming.