Written evidence submitted by Islamic Sharia Council

The debate around the work of Sharia Councils has often been hysterical and deliberately misleading: allegations of Islamist links and funding have been made repeatedly without a shred of evidence to corroborate them; accusations of violations of women’s rights are made without empirical data; the legal systems of Muslim-majority countries have been introduced into the debate, despite the fact they have no relevance to the work of sharia councils in Britain today. The impression given by critics is that Islamic law is homogenous, misogynistic, violates human rights, and is incompatible with modern Western norms. The fact is that Islamic law is inherently pluralistic and allows for a multiplicity of interpretations. Muslim-majority countries thus have a wealth of legal opinions at their disposal from which to choose, and have often used the plethora of interpretations to advance rights for women, children, religious minorities and so forth. But the most compelling fact that one must understand is that sharia councils in Britain today are NOT applying Islamic law as a form of parallel legal system. Muslims are part of the fabric of British society and have no intention of applying separate laws in the various spheres of law, such as crime, governance, immigration, international relations, conveyancing, tax, fraud, and so forth. The work of sharia councils is limited and fully within the law. Their work is complementary to the work of family courts as they offer dispute resolution that is sensitive to the religious and cultural norms of their clientele. If it can be proved (note the use of the word ‘proved’, rather than ‘alleged without evidence’) that they are exceeding their legal remit, then the law must take appropriate action.

As the largest Sharia Council in Europe, our work far exceeds that of other similar councils. But the work we mutually share with others falls under the mandate of Alternative Dispute Resolution. This is also offered by Ecclesiastical courts and the Beth Din. Muslim couples with marital difficulties come to seek help, advice and counselling. The family is the seat of religious teaching and observance. Births, marriages, divorce, funeral arrangements, dietary rules, teaching of Scripture to children, prayers, fasting, giving charity, preparing for Pilgrimage, family connections and so forth are all learned, practised and taught in the context of the family. A secular or Christian legal system cannot and should not intrude on the religious observance of its religious minority. The only caveat is that religious or cultural observance cannot permit abuse of legal rights; if it does, then the state must intervene.

It is well known that Muslims marry in a religious ceremony known as the ‘Nikah’. Although this is treated as a contract between two people, the ceremony will include many religious elements in order to confer divine blessings. It has been observed that Muslims will not cohabit until the Nikah has taken place, even if a civil marriage has first been performed. The razzmatazz of Muslim weddings, the lavish henna parties, the extravagant outfits and customs, the long guest lists, and the numerous ceremonies are all part of the religious wedding.  Generally, if Muslims in Britain have a civil wedding, it will be quite a simple affair. Given the importance attached to the religious ceremony, it is nonsensical to expect the religious divorce to be ignored or belittled should this marriage come to an end. For most Muslims, the religious divorce will be as important or even more important than the civil divorce. The individual will wish to keep their place in the family, the wider community and the faith. To put it simply, they married in the eyes of God, and if the marriage fails, they will wish to divorce in the eyes of God as well. Sharia councils can facilitate this divorce, especially when the husband is being difficult. In fact, a large proportion of the work of these councils is to grant a religious divorce to a woman when her husband has disappeared or is refusing to consent to the divorce.

The issue of ‘triple talaq’ has been raised repeatedly, with no attempt to understand its historical or social development. There are a number of procedures for divorce in Islam, one of which is talaq. This is a unilateral repudiation by the husband; if this procedure takes place three times in a marriage, the couple will be permanently separated and will not be permitted to re-marry unless time has elapsed, they have matured, and have been through another marriage. This law is designed to protect women from unscrupulous husbands who repeatedly divorce them but then reconcile. It also stops couple from taking divorce lightly. Islamic law stipulates a procedure for talaq, which includes compulsory mediation, honest conversation, capacity and intent to divorce, witnesses to the divorce, written agreements, return of Mahr, and a mandatory period of three months as a cooling-off period when the husband initiates talaq. The husband is responsible for full maintenance of his wife during this period. The Islamic Sharia Council has therefore initiated a comprehensive procedure to fulfil these requirements when a man is the applicant for talaq. The fact that some men abuse the law or ignore the talaq procedure should not be blamed on Sharia councils or on Islamic law. The triple talaq (when all three talaqs are given in one moment) does exist in some Muslim communities as one interpretation of the law permits this form of divorce, but the ISC has consistently refused to accept its validity as it contradicts all Islamic guidelines regarding divorce. In fact, many Muslim-majority countries also refuse the validity of three talaqs being given in one time.

Domestic violence is one of the grounds for divorce under Islamic law and is treated seriously by the Islamic Sharia Council. Legal injunctions by Courts are taken fully into account and mediation will not be offered if a Court order exists. Under traditional Islamic law, domestic violence came under the jurisdiction of criminal law and full retribution along the ‘eye for an eye’ principle was offered to the victim. Sharia councils cannot deal with criminal law cases so will leave these for the English criminal justice system.  Critics repeatedly refer to an undercover Panorama investigation which purported to show a victim of domestic violence being told to ask her husband why he was punishing her. A full discussion of this programme is available on the ISC website; the important point to understand is that this particular programme was deliberately manufactured to fulfil a particular agenda. The ‘victim’ was a journalist who told one story in the office and another in the programme; careful editing and voice-overs told a story that differed sharply from the one told in the office. To rely on this fake story to undermine the work of the ISC is to tread on quicksand. Unfortunately, the crushing costs of defamation applications made it impossible for us to seek legal redress against the BBC.

Another issue frequently invoked is the testimony of women. The Koranic principle that has been much maligned and misunderstood is practically identical to that of the ‘McKenzie friend’ found in the English legal system. This name dates from 1970 and permits a litigant to be supported by a friend in Court, either to give moral support or to help with answering questions. Islamic law mandated such a friend for women in financial litigation, as women in pre-modern times were not habitually in control of their finances. The law was designed to give women the confidence and support to answer questions in a court that would be dominated by men. The evidence of the woman was given the same weight as that of a man, but she was given the additional right to have a friend by her side. Unfortunately, this issue has been misunderstood, often by design. In any case, Sharia Councils are not courts and they do not deal in evidence gathering or the calling of witnesses.

Sharia councils are also accused of harbouring extremist tendencies and being funded by foreign governments or ‘fundamentalist’ organisations. Not only is this accusation laughable, it is also completely false. The paper in hand is not the place to discuss the term ‘fundamentalist’ and what it means to different people. But it is worrying when certain women’s groups use this term pejoratively to malign anyone who wishes to live their life by the tenets of a great world faith. Another accusation by these groups is that women are forced to attend sharia councils against their will. This is a ludicrous proposition and, as usual, there is no evidence to back it. Men and women choose to attend the councils as they wish the backing and support of their faith institutions when they have problems in their marital life. If they choose not to attend the councils, that is entirely their choice.

The essence of Islamic law is compassion, goodness, mercy and justice.  If a sharia council fails to implement any of these basic principles, then it has failed in its duty to its community.

Khola Hasan
Islamic Sharia Council