12 Jun, 2011 Sharia Britain: The Paradox of Tolerance
This week Baroness Caroline Cox launched a bill in the House of Lords to impose principles of gender equality upon the sharia courts of Britain. This proposal reflects a growing groundswell of concern about the impact of these courts upon the lives of Muslim women. This initiative is supported by a diverse coalition of human rights groups, including the Iranian and Kurdish Women’s Rights Organisation, whose director Dianna Nammi devotes much of her work to assisting British women who are intimidated and discriminated against by the rulings of sharia courts.
The sharia is a system of rules for all of life. Developed by Islamic scholars in the first centuries of Islam, it not only regulates prayer and worship, but also family relations, welfare, criminal matters, food, financial transactions, politics and even warfare.
The new bill aims to outlaw such practices as valuing a woman’s evidence at half that of a man’s; it seeks to prevent the intimidation and victimization of women who come before sharia tribunals; it requires religious tribunals to inform women that their sharia marriage or divorce may have no standing in British law, leaving them without legal protection; and it makes it a criminal offense to falsely claim legal jurisdiction.
A study by the think tank Civitas reported in 2009 that 85 sharia courts were operating across Britain, some of which have legal standing as tribunals under the alternative dispute resolution provisions of the 1996 Arbitration Act. In a pattern being repeated across Western societies, from Sydney to Ontario, Muslim communities have been asking for legal recognition of sharia law, in the name of tolerance and pluralism.
Critics object that sharia courts discriminate against women, and their expansion in Britain is entrenching a system of parallel societies divided along religious lines. In 2008 the Lord Chief Justice of England, Nicholas Phillips recommended ’embracing Sharia law’, saying there was ‘no reason’ why it could not be used to alternative dispute resolution, and the Archbishop of Canterbury commented, ‘it’s not as if we’re bringing in an alien and rival system’. On the other hand, the Grand Chamber of the European Human Rights court found in 2003 that a plurality of legal systems which accommodates sharia infringes rights to religious freedom, because a state would thereby pressure individual Muslims to live according to religious rules with which they may not personally agree.
A 2004 report by Marion Boyd, Ontario’s former Attorney General, supported Canadian Muslim groups’ call for the use of sharia to settle family disputes. However it was Muslim women such as Iranian immigrant Homa Arjomand who spear-headed resistance to the move, arguing that sharia law denies women equality before the law.
Few governments have been as forthright as Australia, whose Attorney General, Robert McClelland, recently declared that ‘Sharia law has no place in the Australian legal system’ because ‘men and women are equal before the law irrespective of race, religious or cultural background.’
British sharia courts are conducted behind closed doors. Reports indicate that women are severely disadvantaged by their rulings. It is easy for a Muslim man to divorce his wife under sharia law, for no reason. For a woman divorce is much more difficult. She must apply to a court, and only on the basis of a limited set of reasons, which do not include domestic violence or rape by the husband. Often she must pay the husband money in order to be granted her divorce. Furthermore, under sharia law a divorced woman has no right to a share in family assets, and a father has sole custody of any children after they turn seven. Women are further disadvantaged by the sharia laws of inheritance and evidence, which value a woman’s worth at half that of a man’s.
Such principles are not an invention of marginal religious radicals. The International Fiqh Academy is a group of distinguished jurists which operates under the auspices of the Organization of the Islamic Conference. In 2009 it issued a formal ruling on domestic violence which endorsed principles such as those being applied in British sharia courts, including the right of a husband to use force to compel his wife to have sexual relations, even if she is ‘unwilling’, and the right of a man to discipline his wife by what it termed ‘non-violent beating’.
It is an irony that a woman can be more vulnerable to discriminatory treatment in a legally authorized British sharia tribunal than she would be in some Islamic jurisdictions. Islamic states often pass laws to lessen the disadvantage suffered by women under sharia conditions. For example, since 2000, Egyptian law allows women to divorce their husbands without having to give cause – but not without a financial penalty – and in 2005 a law was introduced to extend the period of a mother’s custody of a child beyond the age determined by the sharia. In Britain tribunals with legal standing dole out a purer strain of sharia.
The proposed new equality bill represents a significant escalation of resistance to sharia creep. It can only succeed with government support. If it fails, this will mean perpetuation of second class legal status for many British women.
It is a paradox of tolerance that legal inferiority might to be deemed to be ‘good enough’ for Muslim women, in the name of minority rights.
Mark Durie is the founding director of the Institute for Spiritual Awareness, a Fellow at the Middle East Forum, and a Senior Research Fellow of the Arthur Jeffery Centre for the Study of Islam at Melbourne School of Theology.