Monday, December 21, 2015
I Can Only Agree With This (credit to The Times)
Democracy must always insist on equality before the law. At the heart of this principle is the belief that all citizens, regardless of their faith, creed or gender, are equally worthy of legal protection and redress. If the rule of law is to treat everyone as equal, there can be only one rule of law, administered by the state according to known precepts. The forthcoming inquiry into the judicial role of Sharia councils in Britain is, therefore, significant and welcome. Where such councils act as courts in a parallel legal system, they encroach on the rights of those whose interests are given short shrift by Islamic jurisprudence — often women and children. The inquiry must find such cases, and government must put a stop to them.
Most cases brought before Sharia councils are family matters. As far as civil law is concerned, the councils’ decisions have little binding power. Sharia councils have no official jurisdiction over divorce settlements involving property, cases involving custody of children, or any criminal matters.
However, the councils can grant couples a divorce where their marriage contract itself was religious, not civil. Islamic law, as it is enumerated in the Koran and the collected statements of the Prophet, makes it difficult, though not impossible, for women to seek a divorce. Even where a marital dispute is about cohabitation alone, therefore, women’s rights are not properly respected.
Property and child custody issues will be touched by most divorces too. It would be deeply worrying if the inquiry were to find Sharia councils overreaching by coming to conclusions on these matters. Whereas British law emphasises the best interests of the child in determining custody, for instance, Sharia rules grant custody to the father if the child has reached the “age of transfer”, regardless of the facts of the case. A 2008 ruling of the House of Lords appellate committee, the predecessor of the Supreme Court, rightly branded this system “arbitrary and discriminatory”.
Anyone who has suffered discrimination before a Sharia council is legally entitled to a hearing before a civil court with genuine jurisdiction on these matters, but it can be difficult to claim that entitlement. Few people know the details of their rights of redress under 20-year-old legislation, least of all those who have been told that the decision of the panel before them is final. Even with all the information, the threat of ostracism by the community can deter victims of discrimination from coming forward.
The inquiry should also address those activities of Sharia councils currently recognised by the law. Any two parties who want to resolve a dispute outside the courts can choose to appoint an arbitrator to decide the matter and, if they invoke the Arbitration Act 1996, that decision can then be upheld in civil courts. The Muslim Arbitration Tribunal thus claims to offer Muslims the “opportunity to settle disputes in accordance with Islamic Sacred Law with the knowledge that the outcome will be binding and enforceable”.
British courts must enforce their own decisions alone. Under present law, they may have to uphold a Sharia tribunal’s decision to award an estate to sons and not daughters, simply because all parties signed themselves into a system of inheritance that privileges men over women in accordance with religious law. The civil law should not be so pliable as to yield to the competing jurisprudence of whatever faith wishes to reshape it.
Any agreement reached through coercion or other forms of pressure can always be overturned in a civil court. Coercion often goes hand in hand, however, with enforced silence. Attempts to muzzle victims of discrimination are almost impossible to prove. The inquiry must investigate this, but it can never know what it has not found. The only true protection is a single, sovereign rule of law.