Written evidence submitted by the European Foundation for Democracy

Executive Summary

• The Islamic law (Henceforth Shariʽa ) applied in British Shariʽa Councils and Tribunals treats the woman as a minor controlled before her marriage by her male guardian and after marriage by her husband.

• The rules applied regarding marriageable age and guardianship make child marriages and forced marriages possible, and rules on divorce, maintenance and custody rights clearly discriminate against the wife.

• Women turn to Shariʽa Councils and Tribunals to get a religious divorce and are not interested in mediation or arbitration. Provide them with a means to get this religious divorce and the existence of the Shariʽa Councils and Tribunals will be redundant.

• Link to Extremism: Those Muslims in the West, who claim to represent Muslim communities and call for the introduction of legal pluralism and the use of Islamic law, are often affiliated with two forms of Islamism, societal or/and political.

• Extremism and Shariʽa Councils and Tribunals are connected through membership, ideology and co-option.

• The issue is therefore political and goes to the heart of how to fight extremism within British Muslim communities.

About Dr. Elham Manea and the European Foundation for Democracy

Dr. Elham Manea is a Senior Fellow at European Foundation for Democracy and Associate Professor of Middle East Studies at Zurich University, a writer and a human rights activist. Her latest book "Women and Shari'a Law – The impact of legal pluralism in the UK", published in May 2016 by I.B.Tauris, looked at the actual experience of legal pluralism in Britain; the type of Islamic law being applied in the Shariʽa Councils and Tribunals, the social context of closed communities within which this law is being implemented, and the role played by political Islam in promoting Islamic law in non-Islamic societies. Her submission to the Home Affairs Select Committee is based on this research and book. 

The European Foundation for Democracy is a policy institute based in Brussels that is dedicated to upholding Europe’s fundamental values of democratic governance, political pluralism, individual liberty and religious tolerance. It identifies constructive approaches to address threats to Europe’s security and freedoms from individuals and states that espouse radical, extremist ideologies.

Type of Law applied in Shariʽa Councils and Tribunals

1. I define Shariʽa by the way it is being implemented in Islamic states and within Muslim family laws in the UK Shariʽa Councils and Tribunals, namely as a selection from the corpus of legal opinions of jurists developed over the course of Islamic history, especially between the seventh and tenth centuries.

2. Looking at Shariʽa from this perspective will highlight its problematic nature, for we are not considering its theoretical potential to provide justice. What we are in fact looking at is its actual implementation and hence its obvious limitations and how it contravenes modern concepts of human rights.

3. Islamic Law violate various provisions of International human rights conventions and British Law, the essence of which is expressed by Article One of the 1948 UDHR – i.e. that all human beings are born free and equal in dignity and rights. This principle paved the way for Article 16 of the same declaration and Article 16 of the Convention on the Elimination of all Discrimination against Women (CEDAW). Both articles envisioned marriage and family relations as an equal partnership that would be entered, shared and dissolved by both man and woman on an equal footing. Marriage should be entered into by two persons of age, with their free and full consent, without limitation due to race, nationality or religion. The spouses should have the same rights and responsibilities with regard to guardianship of children, and the same personal rights as husband and wife, including the right to choose a family name, profession and occupation. And both spouses should have the same rights in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a value consideration.

4. This is not the case in the worldview of Islamic law applied in British Shariʽa Councils and Tribunals: it sees the woman as a part of a hierarchical social structure dominated by males with the man at the top and treats the woman as a minor controlled before her marriage by her male guardian and after marriage by her husband (see section 13-16).

The Link to Extremism

5. There is a political dimension that is often ignored: those Muslims in the West, who claim to represent Muslim communities and call for the introduction of legal pluralism and the use of Islamic law, are often affiliated with two forms of Islamism, societal or/and political. who call for the introduction of legal pluralism and the use of Islamic law are often affiliated with two forms of Islamism, societal or/and political.

6. The issue is not only about conservative clerics and imams, who are using the law in ways they have always known about. The issue is most significantly political and goes to the heart of how to fight extremism within British Muslim communities.

7. There are two types of Islamism, which have been working since the 1950s in the UK systematically to cement a homogenising of the Muslim identity, insisting that Islam is one and that identity is religious.

• First, Societal Islamism: It refers to these puritanical extremist religious movements, which concern themselves with changing social behaviours that conform to their rigid worldviews, call for an Islamic mode of life, and separate its followers from its wider society. This type focuses on behaviour, insisting on strict adherence to a range of ritual and personal behavioural practices, especially worship, dress and everyday conduct. But unlike political Islamist movements, they lack a systematic political ideology and are not concerned with state building, at least not at this phase. Within the British context, the societal Islamist movements include the Deobandi, the Tablighi, the Ahl Al Hadith and the Salafi, and Barlevi movements.

• Second, Political Islamism: An ideology - a modern ideology that seeks to use the state’s political power as a means of changing and transforming existing societies. Power is only a means to an end; its goal is revolutionary change compelled by a vision of a puritanical society and state, a society that is governed by God’s law, not laws made by men and women. It envisions a state where identity and citizenship are based on and defined by religious affiliation and observance. Consequently, universal human rights, citizenship rights, minorities, LGBT, and women’s rights are often violated. Examples of this type of Islamism are the Muslim Brotherhood and the Jamaat-e-Islami; the latter created in British India in 1941 by Abul A'la Maududi. The Jammat-e-Islami operates in Britain within the Muslim Council of Britain.

8. The two types of Islamism share common goals:

      A society that is governed by God’s law not man/woman’s made laws;

      A state where identity and citizenship are based and defined by religious affiliation and observance;

      A state run by a chosen supreme and superior group of Muslims.

9. The two types of Islamism also share common worldviews:

      Divide the world into two camps: believers and non believers;

      Promote concepts of military or/and missionary Jihad;

      Start with woman and control of her behaviour and body in their preaching of an ideal Islamist world. 

10. Those working on security issues, people fighting extremism, are not concerned about Shariʽa Councils in Britain. But the two issues, extremism and Shariʽa councils, are connected.

11. The two are connected in three ways: through membership, ideology and co- option: 

• First, membership. The key is that many members of the Shariʽa Councils belong to the various movements promoting societal and political Islamism. My research supports this observation. Members of the two types of Islamism, societal and political, often control British Shariʽa Councils/Tribunals. For example, according to its website, the Islamic Shariʽa Council in Leyton was founded by several organisations that have known affiliations with global political and societal Islamism: Jamaat-e-Islami (UK Islamic Mission), Muslim Brotherhood (Muslim Welfare House), and global Wahhabi Islam (Muslim World League). Also the Shari’a Council in Birmingham, in the Central Mosque in Birmingham, is a mixture of Jamaat-e-Islami, Maududis (followers of Indian Pakistani Islamist scholar Abul Ala Maududi) and Deobandi scholars who run it. The central mosque is an affiliation of the two groups. 

• Second, ideology. Those working in the Shariʽa Councils often display the ideological and political features of Islamism. These features include the emphasis on creating an Islamic state through incremental steps, on implementing Shariʽa, on jihad against ‘…enemies of Islam,’ and on the division of the world into two camps, believers and non-believers. Controlling women and their behaviour through a patriarchal and archaic interpretation of Islam is another common feature.

• Third, co-option. Islamists have co-opted the idea of weak legal pluralism to suit their own political agenda. Islamist co-option of Shariʽa Councils takes several shapes. One is what Tahmina Saleem, co-founder of Inspire, the British Muslim women’s organisation, describes as framing the use of these Shariʽa Councils as obligatory and presenting a de-contextualised patriarchal interpretation of Islamic law as the standard that should be used, ‘Yet these interpretations are promoted as the defining standard by which all other standards are secondary including Western legal notions of women’s human rights’.[1] Co-option takes the form of defending Shariʽa Councils regardless of their shortcomings, and arguing that for Muslim communities, ‘implementation of Shariʽa’ is a ‘religious necessity’. This presentation precludes any mention that the necessity is linked to the political agenda of Islamism, and that such Councils do not meet the general needs of diverse communities of Islamic heritage.

12. These three elements – membership, ideology and co-option – highlight the political dimension of the issue. Ignoring it will not make it go away. It does have implications, not only for the fight against terrorism and extremism, but also for the cohesion of society and the successful integration into British society of diverse migrants of Muslim heritage. Islamists are making use of Shariʽa law to achieve political goals in what one may call a ‘cultural jihad’: one that aims to Islamise migrants of Muslim heritage according to tenets of societal and political Islamism, and to separate them from their wider societies and gradually ‘conquer the West’, to use the words of Sheikh Yusuf al-Qaradawi.

Jurisprudence Rules Applied in Shariʽa Councils/Tribunals 

13. The rules applied in Shariʽa Councils/Tribunals regarding marriageable age and guardianship make child marriages and forced marriages possible, and rules on divorce and maintenance rights clearly discriminate against the wife. These can be summarised as followed:

Age of marriage: A Muslim man or woman must be of sound mind and have attained puberty to be considered legally eligible for marriage. In classical Islamic law, puberty occurs with the physical signs of maturity such as the emission of semen for boys and menstruation for girls.

Guardianship: In contracting a marriage, male guardianship is necessary. A guardian has in fact power to impose a marriage on a virgin girl without her knowledge or consent. The one crucial exception to this rule in Sunni Islam occurs in the Hanafite School of jurisprudence (there are four schools of jurisprudence in Sunni Islam); it is also present in Shi’a jurisprudence.

However, under Hanafite jurisprudence, if the guardian is not satisfied with her choice of husband, he has the right to demand that marriage be annulled on the basis of lack of kafaa: social equality. The concept of kafaa, literally suitability, gives the guardian the right to dissolve and annul a marriage, if he considers the groom/husband not to be fit or suitable.

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Polygamy: A Muslim man may be married up to four wives at the

same time but a Muslim woman can only be married to one man at a

time. A Muslim man may marry a Christian or a Jewish woman, but a

Muslim woman may not marry a non-Muslim man.

Divorce: A Muslim man may divorce his wife, or any of his wives, by unilateral repudiation, talaq, without having to give any reasons or justify his

action to any person or authority. When he divorces his wife by

uttering the word three times, the divorce is considered irrevocable:

bain. In order to return to him, she must first marry a different man

and get a divorce from the new husband.

A Muslim woman can obtain a divorce in three ways: (a) by gaining the

consent of her husband; (b) by getting a judicial decree for limited

specific grounds/harms; or (c) by khula. This means a divorce sanctioned

by a judge, but she must give up all her financial rights to gain it.

A woman divorced by her husband must observe a waiting period

(iddah), normally lasting three months. During this period she cannot

marry another man.

A divorce in which the word is uttered fewer than three times is revocable (raji’i). So even if a woman gets a divorce, her husband may change his mind. During the waiting period he has the right to return her to his household against her will and he need not sign another marriage contract.

Obedience is considered a duty of the wife. A wife should be obedient to her husband insofar as his commands are legally allowed and are ordained as duties of marriage. If a wife is disobedient, she loses her right to maintenance. According to Hanafi jurisprudence, a wife is considered disobedient if she leaves their home without the consent of her husband or without a lawful excuse. Other schools of jurisprudence, however, say that even if she stays at home, she will not be entitled to maintenance if she refuses sexual intercourse. 

Beating: A husband may beat his wife if she is disobedient. The husband can resort to several measures when his wife disobeys him, the last of which is the most severe: beating her. If the woman obeys him, then he should stop using these measures.

Maintenance for a divorced wife ceases after the iddah period, the

three-month waiting period after the divorce.

After a divorce, the wife is only entitled to the sum of money set in

the marriage contract: the muakhar.

Inheritance: A Muslim woman receives less than the share of a Muslim man when both parties have an equal degree of relationship to the deceased person. Hence, a sister inherits from her father half of what her brother inherits. A Muslim husband inherits half of what his wife leaves, provided that she did not have a son. If she does, then the husband inherits a quarter. A Muslim wife inherits a quarter of her husband’s estate if he has no son. If he has a son, then she inherits an eighth. Being of a different religion is a total bar to inheritance. Thus a Muslim may neither inherit from, nor leave an inheritance to, a non-Muslim.

Custody of Children: After a divorce, the custody of a child is entrusted to either the mother or father, depending on the child’s age and sex. Younger children tend to be placed in the mother’s care and the father takes over custody when the child reaches a given age. However, Shariʽa makes a distinction between custody and guardianship: the father is the guardian of the child after separation even if the mother is granted the right to custody up to a certain age, after which custody reverts to the father. If the mother decides to remarry she automatically loses her right to custody.

Testimony: The testimony of two women equals that of one man. Originally this rule was meant for financial affairs; but the jurists expanded the rule and made it a general rule.

14. The type of Islamic law being implemented within Britain’s Shariʽa Councils and Tribunals is classical Islamic law described above with all its contradictions and discriminations.

15. Hence, depending on the type of Shariʽa Council and tribunal applying this law, it can either seek a fundamentalist interpretation of fiqh, or it can try to make the lives of women easier by seeking the most lenient interpretation. But the mindset is framed by the perception that Shariʽa is God’s law and therefore better than any secular law.

16. Reform of Islamic law in Islamic counties such as Tunisia has led to the adoption of civil law, treatment of woman as an independent legal person capable of contracting her own marriage, insistence on the couple’s applying for divorce through civil law, ending a husband’s unilateral right to divorce, prohibition of polygamy, and acceptance of civil divorce as religiously valid (the latter is a rule accepted in most of Islamic countries). In other words, the best practice of Islamic law considers the British system of Shariʽa Councils and Tribunals a violation of women’s rights.

Why Women turn to the Shariʽa Councils and Tribunals

17. Despite the diversity of social background of women turning to Shariʽa Councils and Tribunals, they share one common feature: what they often want is a religious divorce. This is important. They are not interested in mediation or arbitration; they want to end their marriage and get a religious divorce. The fact that the majority of women going to the Shariʽa Councils have not registered or formalised their religious marriage according to civil law only highlights the legal loopholes that compel these women to seek the assistance of the Shariʽa Councils. Once they go there, they enter into an inherently discriminatory process, in which they are pushed to seek mediation instead of divorce. Some are even forced to concede the rights they would be afforded by civil law, as their only means to get the religious divorce they desperately seek.

Recommendations to the UK Government

1. Abolish this parallel religious legal system in the UK and end the work of Shariʽa Councils and Tribunals, and treat citizens and migrants as equal before the law.

2. Do not ignore the political context (especially regarding the two forms of Islamism) and the social context (especially the patriarchal and power structures) within which members of these communities are living.

3. Look closely at the demands presented as religious demands of the Muslim minority and make sure they are not demands that reflect the political agenda of Islamists.

4. To fight violent extremism, policies must confront societal and political Islamism’s messages in schools, mosques, madrassas and religious classes. In charting these policies, it is important to avoid alliances with societal or political Islamist movements, however ‘non-violent’ their message may seem to be.

5. Make it mandatory to have a civil marriage before contracting any religious marriage; implement this ruling with clear and harsh sanctions for any imams and individuals who violate it.

6. Launch a nationwide campaign to register all Islamic marriages. This will ultimately reveal many polygamous marriages. The women who are parties to these marriages, and their children, should be protected. But that protection should not entail recognising polygamy as a form of marriage, as some essentialist legal scholars are arguing.

7. Punish the Muslim man who is involved in polygamous marriages in the same way that the UK legal system would punish a Christian, Jewish or atheist man doing the same thing.

8. Attach to the British court system a unit (with local branches nationwide) that is authorised to automatically issue an Islamic divorce after the civil divorce has been issued: a decree absolute. In many Islamic countries, the religious authorities recognise a civil divorce as religiously valid; the situation should be the same in the UK.

9. Launch a nationwide campaign that reaches women within closed communities to inform them about their rights, the importance and protection of civil marriage, the need to register their marriage and how the law functions in the UK.

Written Evidence By Dr. Elham Manea (Senior Fellow at European Foundation for Democracy and Associate Professor)