When cultural worlds collide The duel over dual (religious vs civil) courts

When the Archbishop of Canterbury gave a lecture on civil and religious law… from the religious perspective… at the Royal Courts of Justice on Feb 7th of this year, I was quick (as were the media and other bloggers) to hit the “publish” button with my opinion. I figured this is a “no brainer”, right?

Certainly the Archbishop has taken more than his fair share of criticism in the wake of his published opinion. But first, let’s establish just what the Archibishop said as perspective: You can read his lecture, linked above. But I’ll pull shorter summaries from a report about his interview with BBC on his website.

The Archbishop made no proposals for sharia in either the lecture or the interview, and certainly did not call for its introduction as some kind of parallel jurisdiction to the civil law.

Instead, in the interview, rather than proposing a parallel system of law, he observed that "as a matter of fact certain provisions of sharia are already recognised in our society and under our law" . When the question was put to him that: "the application of sharia in certain circumstances - if we want to achieve this cohesion and take seriously peoples' religion - seems unavoidable?", he indicated his assent.

Since February, I’ve been watching to see just how the UK was going to respond to what appears to be the advocation of a dual court system (however the Archbishop doth protest...). I certainly got a whiff of the latest news - first on our Independence Day when The Lord Chief Justice, Lord Phillips of Worth Matravers, weighed in on the issue in a speech to a Muslim audience at the London Muslim Centre, saying that residents of Wales and England had to accept the laws as they found them.

“There is no question of such [Sharia] courts sitting in this country or such sanctions being applied here.

“So far as the law is concerned, those who live in this country are governed by English and Welsh law and subject to the jurisdiction of the English and Welsh courts,” he said.

snip

“Those who come to live in this country and benefit from the rights enjoyed by all who live here also necessarily come under the same obligations that the law imposes on all who live here.”

He stressed that Muslims were free to practice their religion without being in conflict with UK laws, but that some Sharia court sanctions (i.e. flogging, chopping off hands, stoning, executions) were clearly not applicable to Muslims in the UK's jurisdiction. All in all, sounds like a strong statement, yes? As the infomercials say... but wait! There's *more*!

Let's get a bit of groundwork leading up to this most current debate. One might say it came to the forefront (again...) just a month before when Dr. Suhaib Hasan, a judge in an east London Sharia court... yes you heard me right, a judge in an existing Sharia court in London... started pushing for integrating Sharia law into the British legal system, saying if Sharia law is implemented, this country will be a haven of peace."

Dr Hasan, who has been presiding over sharia courts in Britain for more than 25 years, argues that British law would benefit from integrating aspects of Islamic personal law into the civil system, so that divorces could be rubber-stamped in the same way, for example, that Jewish couples who go to the Beth Din court have their divorce recognised in secular courts.

He points out that the Islamic Sharia Council, of which he is the general secretary, is flooded with work. It hears about 50 divorce cases every month, and responds to as many as 10 requests every day by email and phone for a fatwa - a religious verdict on a religious matter.

Dr Hasan, who is also a spokesman for the Muslim Council of Britain on issues of sharia law, says there is great misunderstanding of the issue in the West.

In fact, the first English Muslim court opened for business in 1982. Since then, they've grown to ten courts: three in London, others in Birmingham, Rotherham and Dewsbury. Unlike the hardline courts in Islamic law Muslim nations, they handle more mundane and financial issues according to Muslim beliefs.

Speaking to The Times, Suhaib Hasan, from the Islamic Sharia Council, who also acts as a judge, said his organisation receives 10 to 15 e-mails a day about different aspects of Sharia, from inheritance to marriage.

“From the beginning, people have wanted our services. More and more come back to us,” said Dr Hasan. “Each month we deal with 20 cases.”

snip

Though their rulings have no basis in law, participants abide by them voluntarily and often settle their disputes without referral to British law authorities.

I certainly think the "haven of peace" bit from Dr. Hasan escapes me with his argument, but I sure got the idea that he wanted that "no basis in law" bit to change so that their rulings can be accepted as legitimate in British law. Which seems rather one sided as the Sharia law doesn't appear to accept English law decisions (i.e. divorce) with the same legitimacy.

Naturally we all make leaps to Sharia court decisions that are the height of western injustice. One relatively "tame" example might be the 28 year old Malaysian woman who's husband converted not only himself, but their three children to Islam without telling her. Then he forced her into a Sharia law court for a divorce and custody terms. As a non-Muslim in an Islamic law nation, she did not have the Malaysian constitution on her side.

Then there are the more brutal sentences associated with Islamic law, an example of which is the Afghanistan student, sentenced to death in Feb of this year for downloading and distributing a report on abuse of women in Islam, and asking for a debate.

But this is not the first time the Sharia court debate - or in fact it's Jewish court counterparts - has been raised. Canada also has it's history of addressing the same problem, and a recent Feb 2008 article by James Sturcke on the Guardian blog, gives us a recap.

After Canada's 1991 Arbitration Act, both Catholic and Jewish communities set up faith based tribunals to alleviate the back log of court cases on divorce, inheritance and custody issues. In 2003, the Islamic Institute of Civil Justice announced it's intention to follow suit for the 400K Muslims in Ontario.

Needless to say, da sheeeet hit the fan and the protestors hit the streets in Canada. And that included many Muslims averse to the prospect... such as Iranian Homa Arjomand, who organised International Campaign Against Sharia Court in Canada, saying that such a creation would set back Canadian law by 1,400 years.

Premiere Dalton McGuinty equalized all with a stroke of a pen, deciding to ban all faith based arbitrations in Canada in 2005.

I admit I had no knowledge of the existence of the Jewish or Catholic courts in other countries. Even Australia's Melbourne has a Jewish court, and in 2005, Australia underwent the same debate Canada did - also rejecting the proposal. Under the circumstances, Canada's Premiere McGuinty did exactly as he should... separate *all* church and state courts.

Back to Britain's current day debate and the pros and cons. As was pointed out, there are already 10 Sharia courts operating in the UK today. Those that have benefited are those caught between two cultures and Muslim lands. i.e the cases of divorce. In Islam, unless the husband says he divorces you, women cannot remarry. Thus Islamic women can obtain UK or Australia civilian divorces, but they are not recognized by the Muslim faith, and are not free to remarry.

In this instance, an Islamic woman's divorce thru western civil courts gives her no relief. In order to claim her rights and status as an unmarried woman, she must go thru the Sharia court. One might almost say that the lack of those courts is actually denying her a right to be divorced according to her religion. ahhhh... the plot thickens.

On the flip side, some of these same Islamic courts have taken overstepped the bounds of sensibility by taking their justice into the criminal realm as well, freeing some London Somali youths accused of stabbing another.

Youth worker Aydarus Yusuf, 29, who was involved in setting up the hearing, said a group of Somali youths were arrested by police on suspicion of stabbing another Somali teenager.

The victim's family told officers the matter would be settled out of court and the suspects were released on bail. A hearing was convened and elders ordered the assailants to compensate the victim.

"All their uncles and their fathers were there," said Mr Yusuf. "So they all put something towards that and apologised for the wrongdoing."

As is usual with most our debates, what appeared to be a "no brainer" issue is actually clouded by legitimate concerns on both sides of the religious court debate. But one overwhelming issue remains at the center. If Sharia courts are granted some legitimacy with British law, where does that legitmacy begin and end? How can one draw a dividing line between the more mundane financial and divorce decrees, and those that may then tread on a UK citizen's human rights?

And more importantly, should we be setting up these "compromise" legal systems anyway?

Which brings us to today's latest from the London Times, "The Sharia debate: we can't all be equal under different laws", where journalist Matthew Parris was less than bowled over the Lord Chief Justice's speech to the Muslim audience.

“Equality” is a dummy concept in the philosophy of law. Here it allowed both speaker and audience to overlook real differences between them, because everyone is in favour of equality. But Lord Phillips was wrong to say that only recently has English law developed a respect for equality. Common Law and Statute have always regarded everyone as “equal before the law”, but depending on who and what you are and what you've done, your rights may differ. A cat burglar and a householder are not equal before the law.... snip

The only interesting question is whether these inequalities are fair and in the public interest. This must depend on moral and cultural standpoints, which change over time. The argument about “equality” for (say) women who wanted the right to vote, gays who want the right to marry, slaves who wanted to be free, or convicted paedophiles who want the right to be considered for employment in children's homes, has only and always been about the suitability of these categories to enjoy the rights urged for them; not whether the law should be “equal”.

No more than English law does even the most brutal Sharia advocate “inequality”. It simply reflects a cultural belief that women are different. Lord Phillips ducked that by taking equality as his theme.

Certainly Parris has valid points here, for women's rights in Islam are far from equal... even in divorce. But it is later on that he brings this down to a subject near and dear to both my own, and Wordsmith's, hearts. And that is this whole collide of cultural worlds highlights nations created of a subset of hyphenated citizens, each adhering to, and demanding, a different perspective of laws.

But the second claim that Lord Phillips endorses is more dangerous. Decoded, Dr Williams is saying that in a multicultural society it is fine for people within a culture to agree not to exercise certain rights, even if English law would allow them to.

This is a charter for male dominance. It's a charter for cultural bullying; for peer-group pressurising; for self-oppression.... snip

Peer-group pressure and cultural bullying. Yes, that can describe America's prevalent affirmative action mentality in a nut shell. We already see the resurgence (and worse yet, acceptance) of hypenated Americanism as this 2008 POTUS election progresses. We, ourselves, have a large constituency of American Muslims who may see both the benefits, and pitfalls, of attempting to force a legally recognized Sharia court in the US.

The burning question is, will we see this same battle come to our shores? And how will that legalized "hypenating" affect our nation's unity?