Islam, Sharia and Alternative Dispute Resolution

Mechanisms for Legal Redress in the Muslim Community

Mohamed M. Keshavjee

• Publisher: I.B. Tauris
• Year: 2013
• Print ISBN: 9781848857322
• eBook ISBN: 9780857733795
• Edition: 1
• Topic: Social Sciences
• Subtopic: International Relations
• Index: Social Sciences

The meanings and contexts of Shari'a are the subject of both curiosity and misunderstanding by non-Muslims. Shari'a is sometimes crudely characterised by outsiders as a punitive legal system operating broadly outside, and separate from, national laws and customs. This groundbreaking book shows that Shari'a and its 'fiqh' (laws set forward by various Islamic legal schools) comprise a far more nuanced matrix of interpretations than is often assumed to be the case. Far from being monolithic or impervious to change from without, Muslim legal tradition has - since its beginnings in the early Islamic period - placed an emphasis on equity and non-adversarial conflict-resolution. Mohamed Keshavjee examines both Sunni and Shi'a applications of Islamic law, demonstrating how political, cultural and other factors have influenced the practice of fiqh and Shari'a in the West. Exploring in particular the modern development of Alternative Dispute Resolution (ADR), the author shows that this process can revitalise some of the essential principles that underlie Muslim teachings and jurispudence, delivering not only formal remedies but also perceived justice, even to non-Muslims.

1

Introduction

The applicant before the Sharia ‘court’ was a young British woman of Pakistani origin living in a London borough. She was married to a Pakistani civil servant and wanted an Islamic divorce, which is the prerogative of the husband within a normal marriage contract under Islamic law. She could obtain a civil divorce in the United Kingdom courts, but that would not be accepted by many of her fellow religious adherents, and she would not be able to marry an observant Muslim in the future.¹ In return for the divorce, she was prepared to hand back to her husband everything he had agreed to give her on marriage, an arrangement known as a khula divorce; but her husband had refused to cooperate unless she gave him £15,000. During the course of the negotiations, the wife’s father had died, leaving her a bequest of £150,000, and the husband had then increased his demand to £50,000. Subsequently, she had appealed to the Sharia ‘court’ to intervene in the matter.

After deliberating on her case, the Sharia ‘court’ wrote to the husband in Pakistan, informing him it would ensure reimbursement of the marriage expenses he had actually incurred and asking him to specify those expenses. When the husband replied with a sum that was clearly exaggerated, the Sharia ‘court’ invoked two important principles of classical Islamic law – darura (necessity) and maslaha (public interest) – and exhorted him to take due cognisance of his wife’s situation. However, the husband would not agree to a compromise. The ‘court’ had no power to compel him to comply, but its founder, Dr Mohamed Zaki Badawi, an Egyptian scholar-imam, knew the then Pakistani President General Zia ul-Haq personally, and warned the husband that if he continued to be unreasonable he would ask the President to intercede. The husband then agreed to settle the matter for £5,000.

This case, which was heard by the Sharia ‘court’ in the late 1970s, is an illustration of how different the day-to-day actual implementation of Sharia law can be from the image conveyed by sensationalist reports in the media focusing on practices such as whipping and stoning among some of the more conservative Muslim societies. Zaki Badawi used an arguably extra-legal manoeuvre – the threat to use a personal connection to Pakistan’s former ruler – to increase pressure on the defendant since the Sharia ‘court’ had no right of enforcement against the husband. By so doing, he protected the rights of the woman in the interests of equity and justice.

This was the second case brought before the Sharia ‘court’, which later became known as the Muslim Law (Shariah) Council (UK), or the MLSC. Since its formal inception in the mid-1980s, the MLSC has increased its membership to 15, of whom three are secular lawyers trained in Britain. It has also broadened its scope immensely, encompassing the different madhaib (schools of law) of Sunni Islam as well as Shi‘i (Imamia) schools of jurisprudence.² Zaki Badawi explained the advantages of this fusion to me: ‘We advanced a great deal on the Imamia madhab, because the Imamia are very good in some aspects.³ Also, we often drew upon the Imamia as well as the Maliki madhab to find a solution to a particular problem.’

The Sharia instructs any group of Muslims living in a non-Muslim society to select one person from among them to be their leader as well as some other knowledgeable people to help them resolve their disputes in accordance with the Sharia (Badawi, 1995). It was in the context of this second provision that, in 1978, Dr Mohamed Zaki Badawi, then imam of the Regent’s Park Mosque and Director of the Islamic Cultural Centre in Regent’s Park, started to resolve conflict-of-law issues in collaboration with a small group of imams.⁴ The most prevalent issues were family matters. One common problem was refusal by a husband to give a talaq (divorce by repudiation) to his former wife after she had obtained a divorce in the secular courts. While this made her eligible for remarriage in accordance with the laws of the United Kingdom, it did not do so under the Sharia. The man, for his part, could remarry according to UK laws as well as the Sharia, since men are allowed to be polygamous under the Sharia. This problem, referred to as that of the ‘chained spouse’, was creating serious difficulties for Muslim women in Britain and elsewhere in Europe. Operating from offices in West London, the MLSC entertained applications from Muslim women facing the ‘chained spouse’ problem. This was often done through the imams of the various mosques with which Zaki Badawi’s organisation was affiliated. At the time of publication, some 350 matrimonial dispute cases were being referred to the MLSC each year.

In Islam, divorce is perceived as a reprehensible act and is only a last resort. This is based on the hadith⁵ that states, ‘of all things legally permissible, talaq is the most blameworthy’ (Coulson, 1969: 84). However, marriage in Islam is viewed as a civil contract and its dissolution is accepted when a relationship has broken down irretrievably. Therefore, the MLSC’s willingness to help women who have already obtained a divorce from secular courts because they can no longer continue their marital relationship is within the bounds of Islamic law.

To hear the cases of ‘chained spouses’, Zaki Badawi headed a panel of scholars, including the three lawyers trained in England, one of whom was a woman. In each case, the husband would be sent a letter by the MLSC stating that the Qur’an exhorts people to live in harmony, but when that is not possible, Muslims ‘are not allowed to hold forcibly a woman, as a wife, against her wishes’. The letter requested the husband to do one of three things: to make every possible effort towards reaching a reconciliation; failing that, to grant his wife a divorce; and in either case, to contact the MLSC to present his side of the issue. The letter stated that if the situation remained unchanged over a reasonable time, the MLSC would dissolve the marriage. It normally issued three notices. The final notice cautioned the husband that ‘if the Council does not receive a reply from you within 21 days (31 days, if overseas) of the date of this letter, it will be construed as a definite act of intention to harm (darar) the interests of the woman concerned, which would be valid grounds in Islam to dissolve the marriage’. Usually, husbands ignore the notices, with the result that the MLSC proceeds to hear the applications in their absence.

According to its literature, the MLSC also provides conciliation and mediation services. Processually, the MLSC operates as an arbitration tribunal. It advises reconciliation, but in practice that does not always seem to take place since a civil divorce petition has already been heard or is being heard simultaneously in an adversarial arena. In effect, the MLSC is asked to grant a declaratory judgement – pronouncing an Islamic divorce based on, and following, a divorce granted under the laws of the United Kingdom. Examination of its records shows that the grounds for the civil court divorce as well as the Islamic one are in many cases almost the same.

In order to address the fullest spectrum of Muslims in Britain, the MLSC draws upon the wider heritage of Muslim law, employing the most humane interpretation of the law. It does this by allowing disputants to choose from the different schools of Islamic jurisprudence allowed by Islamic law (takhayur), including where necessary, the principles of Shi‘i law, to resolve problems. Its ecumenical approach, coupled with professionalism, has given it a pre-eminent place in alternative dispute resolution (ADR) for Muslims in England. According to Badawi (1995: 77), ‘We have quietly established ourselves as consultants for the Courts, and have been approached by a number of solicitors.’

The MLSC was also approached in the case of Akmal v. Akmal, involving a 14-year-old girl who had been taken to Pakistan and forced by her father to marry against her will. She returned to Britain and, ten years later, decided to end the marriage, asking not for divorce but for annulment. The civil court granted her petition, but the case disturbed many Muslim parents because it undermined their authority to compel their daughters to get married. In asking the civil court for annulment of her marriage, the young woman rejected the MLSC’s advice that she should petition for divorce because society could not be changed overnight by appealing to ‘another law superior to our law, but rather you achieve change by education’ (Badawi, 1995: 77). However, it was significant that the MLSC was approached for advice from an Islamic perspective.

The MLSC has handled a number of cases concerning inheritance and the distribution of wealth within the family where one child or heir is preferred to another. In 1979, before its formal establishment, it negotiated with the authorities over inheritance, and was advised by legal specialists that a Muslim could divest of his estate in accordance with Islamic law through a will. It negotiated with a lawyer who agreed to draft wills for £7 each, and the MLSC agreed to pay the cost for the first 100 applicants to encourage Muslims to come forward. Only 17 did so and a delegation of Muslim women asked the MLSC to end the service ‘because it militates against our interests. We are better off under English intestacy law’ (Badawi, 1995: 80). Thus, in that case, it would seem Muslims were prepared to eschew the provisions of the Sharia if it did not serve their interests.

Muslims are not the only minority community in a Western country who use faith-based arbitration to resolve interpersonal conflicts. Jews also use religious courts, known as bathei din.⁶ Research into faith-based arbitration in the United States by Wolfe (2006) and Zelcer (2007) identifies features and issues that arise in such courts that are common to both Muslims and Jews. Six main themes emerge that are of relevance to this study.

First, Islamic and Jewish tribunals are of special interest because marriage and divorce are likely to come within their ambit, yet the religious doctrines used to resolve these issues are viewed by some in the two communities as antiquated and prejudiced against women. For instance, in Judaism only a man can grant a divorce, called a ghet, and he must grant it willingly. If the husband refuses to give his consent to a divorce, the beth din cannot terminate the marriage and the wife is unable to remarry. If the woman does remarry, the relationship is considered adulterous and any offspring born of the marriage are considered illegitimate under Jewish law, preventing them from marrying within the Jewish faith.

An interesting development in this connection was the enactment of the Divorce (Religious Marriages) Act 2002, an addition to the Matrimonial Causes Act 1973 (the Act that deals with divorce in England).⁷ The Divorce (Religious Marriages) Act 2002 provides that, where a Jewish man applies for a civil divorce, a civil court may adjourn his application until it has proof that he has given his wife a religious divorce (by ghet). The Act facilitates matters where the husband wants a civil divorce but wants to punish the wife by not giving her a religious divorce; however, it does not assist the case of a Jewish woman who wants a civil divorce while her husband does not. In such a case, a Jewish woman may obtain a civil divorce but cannot force her Jewish husband to give her a ghet, so she will still be unable to remarry within the Jewish faith. The Act states that it may be extended, through secondary legislation, to other religions (such as Islam, although a Muslim wife may have avenues such as the MLSC for obtaining a religious divorce in a diasporic Muslim community) but no such secondary legislation has been passed as yet.

The second commonality between Muslim and Jewish use of faith-based arbitration to resolve interpersonal conflicts is that the benefits of using such arbitration in a family dispute are considered to outweigh the disadvantages because, from a legal perspective, to quote Wolfe,

religious arbitration systems are actually necessary to deal with religious disputes because resolving religious conflicts through secular courts leads to inconsistent results and limited relief for religious people. The inconsistencies can be seen clearly in the way courts treat the enforcement of religious documents like the ketubah, maher agreements, and Jewish prenuptial agreements, and the response of courts to Jewish men who refuse to grant their wives religious divorces. (Wolfe, 2006: 451.)

Third, faith-based arbitration using religious law raises human rights concerns. Legitimate fears that extremist religious laws and cultural attitudes would take over any type of independent faith-based arbitration system have driven some to believe that such an arbitration regime would be harmful to vulnerable parties. Fourth, according to Wolfe, the proper response to the criticism of religious arbitration is not to ban it entirely, but to implement greater oversight procedures, because through heightened oversight religious communities will be able to preserve their culture and heritage while the state will be able to fulfil its duty of protecting citizens.

Fifth, evaluation of the processes is very important. Zelcer points out that ‘Statements of ex-litigants [because there will always be one person who was satisfied and one who was aggrieved] must therefore be taken with a grain of salt’. However, ‘when these complaints are numerous and widespread, we have no choice but to listen to them and try to derive solutions to prevent them from recurring’ (Zelcer, 2007: 102).

Finally, as Zelcer observes, though it would be ideal as a community to ‘put our efforts and allocate resources to create a single outstanding bet din that will be used by the entire community’, unfortunately, that will never happen, as ‘there are too many diverse groups who will never give up their rights to run their own bet din’ (Zelcer, 2007: 110).

The present study found these themes in the faith-based ADR processes among the Muslims in Hounslow as well. It also found that the notion of trust in a diasporic Muslim community encompasses a particularly broad range of issues because of concerns over patriarchy and diverse interpretation of religious laws. This includes confidentiality, trust in the mediator, trust in the process, trust in oneself, trust in the other, but above all, trust in the community as a whole to subscribe to a form of Sharia that is true to its original purpose and compatible with contemporary needs. In Hounslow, the concept also includes trust in an institution such as the MLSC to make decisions that transcend geographical areas of the Muslim world, schools of Islamic law and particular interpretations, and yet remain authentic and relevant. The importance of trust is demonstrated by the recent ADR controversy in Canada, where the Ontario provincial government initially allowed faith-based communities to apply their own religious laws in family-based arbitration but subsequently had to repeal the law because Muslims in the province could not agree on a common interpretation and application of the Sharia (Boyd, 2004). The issue attained national proportions, involving Muslims across Canada.

Britain has generally shown a degree of tolerance and has for some time now been officially propounding a policy of multiculturalism or cultural pluralism. In 1966, the Home Secretary announced that integration of ethnic minorities no longer entailed ‘assimilation’, but rather equal opportunity coupled with cultural diversity in an atmosphere of mutual tolerance (Jenkins, 1967). The Swann Report (1985: 6) articulated this vision of a ‘genuinely pluralist society which is both socially cohesive and culturally diverse’:

seeking to achieve a balance between, on the one hand, the maintenance and active support of the essential elements of the cultures and lifestyles of all the ethnic groups within it and, on the other, the acceptance by all groups of a set of shared values distinctive of the society as a whole (emphasis added).

The same point was made by the Chief Rabbi, Dr Jonathan Sacks, in his Reith Lectures in 1990 when he outlined his vision of a pluralistic society:

think of a plural society; not as one in which there is a Babel of conflicting languages, but rather as one in which we have to be bilingual. There is a first and public language of citizenship which we have to learn if we are to live together. And there is a variety of second languages which connect us to our local framework of relationships: to family and group and the traditions that underlie them. If we are to achieve integration without assimilation, it is important to give each of these languages its due [. . .] For everyone, it means settling for less than we would seek if everyone were like us, and searching for more than our merely sectional interests: in short, for the common good (Sacks, 1991: 66, 68, cited in Poulter, 1995: 81; emphasis added).

Citing a number of common law cases as examples to demonstrate that the English legal system responds positively to the needs of a multicultural society, Poulter asks whether such a pluralistic philosophy has any limits. He posits that it is not likely that English law will adopt a policy of ‘cultural relativism’, whereby any practice or any tradition of any minority community will be automatically accepted and upheld by English law. He feels that limits will be imposed on the basis of ‘shared values’ or ‘public language of citizenship’. He suggests that the place to find these ‘values’ and this ‘language’ would be in very widely ratified and accepted human rights treaties, particularly the International Covenant on Civil and Political Rights, which has 167 states parties, 67 by signature and ratification and the remainder by accession or ...

Table of contents

• Cover Page
• About the author
• Title Page
• Dedication
• Contents
• Foreword
• Acknowledgements
• List of Figures
• 1. Introduction
• 2. The Muslim Community in Britain
• 3. Overview of the Hounslow Muslim Community
• 4. The Sharia, Religious Law of Muslims
• 5. The Muslim Law (Shariah) Council (UK)
• 6. The Many Faces of ADR in Hounslow
• 7. The Case for Court-Invoked Adjudication
• 8. Towards an Islamic Model of ADR
• 9. Policy Considerations
• Appendix: Some Perspectives on ADR
• Notes
• Glossary of Arabic, Persian and South Asian Terms
• Bibliography
• Index
• eCopyright