Council of Europe’s ruling on Sharia: a case of moral panic?
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Friday February 22 2019
At a time when the activities of the Muslim communities are being purposely misconstrued by politicians and the media alike, the recent resolution by the Council of Europe risks further maligning the Muslim community. The resolution, dealing with the application of Sharia Law in Europe, makes a number of references to the United Kingdom (UK), however, sounds patronising by inadvertently dismissing the agency of the Muslim communities.
The resolution (2253), entitled: “Sharia, the Cairo Declaration and the European Convention on Human Rights”, highlights the fact that the assembly was “concerned about the fact that Sharia Law…is applied, either officially or unofficially, in several Council of Europe member states”. It continues to state that the assembly “fully agrees that Sharia law rules on, for example, divorce and inheritance proceedings are clearly incompatible with the convention”.
This pattern of bald claims being made without accompanying clarity continues when referring to the UK. The resolution reads:
“The Assembly is also concerned about the “judicial” activities of “Sharia councils” in the United Kingdom. Although they are not considered part of the British legal system, Sharia councils attempt to provide a form of alternative dispute resolution, whereby members of the Muslim community, sometimes voluntarily, often under considerable social pressure, accept their religious jurisdiction mainly in marital and Islamic divorce issues, but also in matters relating to inheritance and Islamic commercial contracts. The Assembly is concerned that the rulings of the Sharia councils clearly discriminate against women in divorce and inheritance cases. The Assembly is aware that informal Islamic Courts may exist in other Council of Europe member States too.”
In dissecting the paragraph, three important points stand out. These are: firstly, the unclarified remit of the councils in the British legal system; secondly, the practices of the councils on particular issues; and finally, the motivations of the people who choose to engage with these councils and discrimination they may face.
Firstly, in examining the remit of the British legal system, the resolution notes that the councils are not considered part of the British legal system, and in fact attempt to provide a form of alternative dispute resolution. Whilst this is correct in the formal sense, there has been much confusion over this, with some claiming that they act as a parallel legal system. As such, it is imperative to first note that Sharia councils act as arbitrators as allowed by the Arbitration Act of 1996 with similar institutions operating within other religious minority communities (e.g. the Jewish Beth Din system and the Catholic National Tribunal). Therefore, whilst Sharia councils are not a representative institution of the British legal system they do in fact operate squarely within British legislation because of the flexibility afforded to them, and similar structures, as laid out in the Arbitration Act.
Secondly, the resolution comments on the practices of the Sharia councils including: religious marital issues, and at times inheritance and Islamic commercial contracts.
In both cases of matrimony and inheritance, the resolution highlights that women are discriminated by the rulings of Sharia councils. Regarding discriminatory malpractices of some Sharia councils, this has been documented before by the work of some excellent women’s rights groups, including but not limited to the Muslim Women’s Network UK, and by the aforementioned independent review. Needless to say, malpractice of some councils that discriminates against women is not just morally wrong but also religiously, and it is imperative that we work towards eliminating such issues.
If we consider practices that may seem discriminatory e.g. difference in inheritance between sons and daughters (2:1, respectively), it is worth remembering that this practice is allowed within the UK legal context (as part of the Human Rights Act) which allows for such freedoms. Indeed, we as free citizens of the country can choose to construct wills in any way, shape or form we want. Therefore, to choose to construct our will in a particular way, such as that in a Sharia-compliant manner, is a fundamental civic right under the UK legislation. On the other hand, the law also allows any person, including wives/daughters etc. being completely deprived of their inheritance. Therefore, there is no protection for women under the current domestic legislation. Sharia-compliant wills enforces a share for all relatives so you cannot deprive any female relative of their rightful share. To coerce people to do this without their approval is of course wrong and should be condemned and invalidated. However, if people opt to manifest particular practices through their own agency then it is only correct for them to be allowed to do so without being condemned as being discriminatory.
Thirdly, the resolution moves on to question the motive of people who choose to engage with the councils in the first place, in effect dismissing the agency of Muslims. The resolution itself notes, in a passing remark, that there are members of the Muslim community that voluntarily choose to engage with Sharia councils. However, this distinction is lost as the resolution progresses. In fact, the importance of Sharia councils in dealing with religious marital services has been noted previously by a number of academic studies, including by Cardiff University in 2011, and an independent review commissioned by the Home Secretary, entitled: “The independent review into the application of Sharia law in England and Wales”. The review found that the vast majority of people (90%) using the councils were women seeking a religious divorce from their spouse. The review added that “without Sharia councils these women would have very few avenues for obtaining a religious divorce and will end up being trapped in undesirable and often abusive marriages”. The study by Cardiff University further found that around half of the marital cases handled by the Sharia council of the Birmingham Central Mosque involved coupled who were not married under English civil law. Regarding this, the councils act in a very similar capacity as the Beth Din system and the various Roman Catholic Marriage Tribunals.
If individuals are being pressured into engaging with Sharia councils then what must be done is to ensure that there are mechanisms that identify those at risk of such pressure, that can measure voluntariness of individuals, and mechanisms that prevent individuals from being exploited. However, this should not be used to target Sharia councils in general, and as a consequence negating the positive work that they are doing for the Muslim community. Sharia councils are fundamentally a grassroots phenomenon that arose due to the religious needs of the Muslim community, therefore, the advice that the councils give are given because members of the Muslim community seek them. The idea of faith being a significant part of a person’s identity is a phenomenon shared across nearly all major religions. To prevent a person from manifesting their belief is, as previous resolutions from the Council of Europe have noted, a breach of fundamental human rights. Therefore, to actively prevent a person from exercising their human rights is beyond the remit of State and international bodies, regardless of whether they do or do not consider the religious value to be inherently discriminatory.
To conclude I quote the findings of the independent review that said that “one cannot implement a ban on organisations on organisations which can be set up voluntarily anywhere…it is clear from all the evidence that Sharia councils are fulfilling a need in some Muslim communities…we consider the closure of Sharia councils is not a viable options”. Whilst there may be practices that are adopted by the Muslim communities that may seem inherently discriminatory, it is important to note that these are not legal rulings, all are able to seek other rulings and civic courts if unsatisfied. Furthermore, if there are cases that individuals are being forced to obey particular rulings issued by Sharia councils then the problem that needs to be addressed is this “societal pressure”. Therefore, our efforts should not be focussed on removing institutions helping Muslim women but rather be focussed on empowering Muslim women.