By Machteld Zee, PhD candidate at Leiden University, the Netherlands, and LSS member
In the three previous blogs, I explained the practice of England’s most well-known Sharia councils, such as the fundamentalist council in Leyton, London, and the more liberal council which is part of the Birmingham Central Mosque. This fourth and final blog in this series lays out the status of such religious tribunals within the legal framework of the United Kingdom and provides alternatives a state can employ in order to make these councils redundant for the sake of women’s rights.
Proponents of Sharia Councils
“There is no reason why principles of Sharia Law, or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution”, said Lord Phillips of Worth Matravers, then Lord Chief Justice of England and Wales, during his speech entitled ‘Equality Before the Law’ at the East London Muslim Centre in 2008. A few months earlier, Rowan Williams, the former Archbishop of Canterbury, spoke on the topic of civil and religious law in England. Both speeches created mass controversy as they made the point that it should be possible for individuals to choose jurisdictions when settling private legal matters, including the option to have matters settled under Sharia law.
The Arbitration Act of 1996 has provided legal jargon for religious tribunals, and it is under the header of mediation and arbitration that these Sharia councils have been able to function. However, Sharia councils do not mediate or arbitrate. Their ‘core business’ consists of dealing with women requesting an Islamic divorce. In fact, 95 per cent of the cases (hundreds per year per council) relate to divorce requests. And, considering that mediation and arbitration are tools for extra-judicial decision-making for a minimum of two parties, a one-party divorce request surely does not count as any form of alternative dispute resolution.
The consequence for the legal status of these religious tribunals is that there are two separate legal systems functioning independently, of which one is operating in the shadow of the law.
Yet, for the proponents it seems morally and principally plain wrong not to grant, at least to a certain extent, judicial autonomy to Muslims. The moral justification lies in the equal treatment of all religions, and, the reasoning goes, because British Muslims are not free to live under their own laws, as institutionalised by their own courts, they are not treated equally. The wish is for more legal latitude to be given to rights rooted in religious identity in the form of Islamic religious tribunals. Interestingly enough, these proponents adhere to notions of non-discrimination between groups. By doing so, they miss the important point of non-discrimination within groups.
In fact, in 2013, the United Nations Committee on the Elimination of Discrimination against Women issued a general recommendation on article 16 of CEDAW – which deals with discrimination against women at the inception of, and during, marriage and at its dissolution by divorce or death. The Committee recommends that all Member States adopt legislation to eliminate the discriminatory aspects of family law regimes, whether they are regulated by civil code, religious law, ethnic custom or any combination of laws and practices. Moreover, the Committee expresses “concern that identity-based personal status laws and customs perpetuate discrimination against women and that the preservation of multiple legal systems is in itself discriminatory against women.”
The British political lobby organisation One Law for All demands an end to all religious tribunals on the basis that they work against and not for equality and human rights. Not that the state’s legal system might be opening up for religious laws, but the de facto presence of Sharia councils in itself, in addition to the public advocacy thereof, as if these institutions were to serve to the benefit of Muslims, is enough to raise concern. These and other opponents believe the development of autonomous, ‘quasi-legal’, courts is one that is not deserving of formal recognition. Moreover, while Williams and Phillips lament the idea that legal universalism ignores the plural reality, women’s rights and secular rights’ advocates actually embrace the idea that there is one law that applies to every individual – male, female, Muslim, non-Muslim, and which thus ignores the plural make-up of society.
Marital Captivity and the Law
Four years after the Archbishop and the Lord Chief Justice delivered their speeches, a Private Member’s bill was proposed in the House of Lords. The Arbitration and Mediation Services (Equality) Bill’s aim is to prevent discrimination against Muslim women. It focuses on addressing the false notion – under misinformed (female) Muslims – that Sharia court rulings have the force of UK law. The bill’s influence also intentionally extends to Jewish courts, which are also seen as hubs of gender inequality. It culminates in the creation of a new criminal offence; falsely claiming legal jurisdiction.
Valuable as this bill is in keeping the public debate on religious tribunals going, it unfortunately does not address the problems arising from the fact that at least for a part of the British Muslim community, Sharia law is inevitable when dealing with issues regarding marriage and divorce.
That is, one of the key issues is – and this also goes for Jewish women – that some Muslims do not consider a secular divorce sufficient when the religious marriage is not formally dissolved. When a woman is still considered married under religious law but no longer under civil law (if there ever was a civil marriage), one speaks of marital captivity. This ‘split status’ position leaves women vulnerable to the whims of ‘recalcitrant husbands, who are well aware of the adverse effect the situation has on their wives, as they fall between the cracks of the civil and religious jurisdictions’, as stated by professor of law Ayelet Shachar.
Some people argue that from this perspective Sharia councils actually help women by releasing them from a situation of marital captivity when their husbands are unwilling to cooperate with a religious divorce. However, women’s rights activists contest the general assumption that those who attend Sharia councils do so voluntarily. In reality it is evidenced that women are often pressured to go to a Sharia council and to accept unfair decisions. Or, as professor of law Shaheen Sardar Ali labels it, “their very existence […] pressurises women to use such forums to obtain ‘acceptance’ from their families and communities”.
The Netherlands and the future of Sharia councils
The Netherlands has recently introduced two alternatives for women who have been put in a situation of marital captivity by their husbands. This year, the law against forced marriage, polygamy and female genital mutilation has been widened to include marital captivity as a criminal offence. According to Shirin Musa, founder of Femmes for Freedom, after years of marital captivity, a woman finally pressed charges, which caused her husband to immediately cooperate with a religious divorce. A second important alternative to Sharia councils was established by Shirin Musa herself: after years of failed attempts to get her husband to cooperate with the divorce, she took the civil route: the civil judge imposed damages upon the husband for each day of non-compliance with the court’s ruling that he had to release her from the religious marriage. He instantly did. She founded Femmes for Freedom in order to help, financially and otherwise, Jewish and Muslim women in marital captivity to use these secular legal routes to set themselves free.
This basically means that women are no longer dependent on religious tribunals for their religious divorces when secular legal regimes offer effective alternatives for religious tribunals, making them redundant. In short: the Netherlands has – perhaps unintentionally – called for the bankruptcy of its Jewish council, and has anticipated the arrival of Sharia councils on its soil.
This post originally appeared on the Leiden Law Blog and is reproduced with kind permission of the author.
Machteld Zee is a PhD candidate and Junior Lecturer at the Institute for the Interdisciplinary Study of the Law, Department of Jurisprudence, Leiden University, the Netherlands. Her research centres around contemporary problems regarding religion and politics in multicultural societies. You can read more of her posts here.
Views expressed are not necessarily those of the LSS
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