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Shariah Queries Pose Challenge

Proponents of traditional form of justice have to deal with equality issues, says Muslim scholar

By Ghayasuddin Siddiqui

Eastern Eye, London, 17th April 2009

The comments made by Rowan Williams, the Archbishop of Canterbury and Lord Phillips, the former Lord Chief Justice, last year in favour of the applicability of the Shariah law in Britain have aroused expectations among the promoters of Shariah law within the Muslim community that their victory is around the corner. However, comments by the archbishop and former Chief Justice are merely proof that at least a section of the British establishment is willing to consider these issues seriously provided that Muslim family laws meet the established norms and requirements.

The first issue which remains unclear in the minds of most proponents of shariah is that these sets of laws are man-made and hence can be updated. Though derived from the Quran and Sunnah (sayings & actions of Prophet Mohammed) shariah law were put together by esteemed Muslim scholars taking into consideration their local environment. A typical example is the punishment for adultery. The Quran prescribes 100 flogs yet shariah laws give stoning to death as the applicable punishment, a punishment which existed in Arabia due to the influence of the Old Testament.

The Quran provides a set of values to raise the societal morality to a high level such as justice (adle), ihsan (benevolence) rahmah (compassion), hikmah (wisdom) and human dignity. Punishments are less corporal and more reformatories, when all efforts to reform an offender fail then a maximum punishment is applied. However, if at a given time any law violates Islam’s higher values it becomes unacceptable.

The Muslim community is very diverse. This diversity is further stretched with the practices based on schools of thought and certain cultural conventions. Hence there is no single ‘Muslim family/personal law’ ready to be applied. This makes such application more daunting and thus requires more trained professionals.

During 2003-2005, a prolonged debate took place in the Canadian province of Ontario about the use of the Arbitration Act and the use religious principles to deal with matters such as marriage, divorce, property division, support on marriage breakdown, custody and access to children, and inheritance. The Shariah Tribunals in Britain seeks to follow the same route. The former Attorney General of Ontario, Marion Boyd, prepared a lengthy report on the subject which is very instructive for those who wish to have an insight into the issue. However, as a result of nation-wide debate and pressure from women’s groups including Muslim women the scheme was shelved (see http://www.ccmw.com/) .

The review highlights a general perception about shariah law in the society:

‘Muslim family law perpetuates a patriarchal model: man is the head of the state, the mosque and the family. Most proponents of the Muslim law accept than men have the right to marry upto four wives; that they can divorce unilaterally; that children belong to the patriarchal family; that women must be obedient and seek the male’s permission for many things; that if the wife is ‘disobedient’ the husband can discipline her; the daughters require their father’s permission to marry and she can be married at any time after puberty; a wife does not receive any maintenance except for a period of three months to one year and must agree that the children should go to the father usually at the age of 7 for boys and 9 for girls. If the wife wants a divorce she should go to court, while the husband has the right to repudiate the union without recourse to the courts. Inheritance laws favour the male to the extent that the wife gets only a portion upon the death of her husband. A wife cannot travel without her husband’s consent and does not have the right to choose her place of residence.’

This poses a great challenge to the Muslim community to remove the perception that Islam treats women as second class citizens. This is particularly important at a time when women are performing better than their male counterparts in all areas of professions and are in many cases bread-winners in the families. Unless shariah supporters are able to carry the support of women groups with them, their chances of success are remote.

With regards to qualification and training, the review emphasised the need for mandatory membership of one of the professional associations dealing with standards for mediators and arbitrators. Equally extensive religious training that qualifies them to mediate or arbitrate in faith-based context was required. Apart from this, the process ought to be transparent, subject to established human rights and women’s rights conventions.

Whether the Muslim community is ready to face the challenge is a mute point. All indicators are they want to put the cart before the horse i.e., manage the Shariah Tribunals and deal with issues as they arise. However, this is not the way the justice system operates.

Dr Ghayasuddin Siddiqui is director of the Muslim Institute