This item is available on the Militant Islam Monitor website, at http://www.militantislammonitor.org/article/id/4223
January 14, 2010
‘To what extent is Sharia Law already operating in Britain ?
To what extent is Sharia Law incompatible with British Law?'
The Times (London)
Jan 11, 2010
In February 2008 the 104th Archbishop of Canterbury , Dr. Rowan Williams delivered a lecture at the Royal Courts of Justice titled ‘Civil and Religious Law in England : a Religious Perspective.' The Archbishop talked about Islamic sharia law and compared sharia courts in the UK to the Jewish ‘Beth Din' courts. The next day, on BBC Radio 4's ‘World at One' the Archbishop gave an interview which appeared to make his point much more explicit.
Whilst conceding that he was ‘no expert' on sharia law, he related what he understood it to be, rebutted suggestions that it was a monolith and denied that its most famous and brutal manifestations – in Saudi Arabia for instance – were typical.
It was put to him that sharia was ‘incompatible with democracy' and therefore hard to incorporate into British life as he appeared to be advocating. The Archbishop replied: ‘That's a pretty sweeping judgment.' Whilst repeatedly stressing the complexity of the tradition of Sharia, and once again citing the Beth Din as a precedent for the integration of religious courts in British law, one particular phrase stood out.
‘...now that principle that there's one law for everybody is an important pillar of our social identity as a Western liberal democracy, but I think it's a misunderstanding to suppose that that means people don't have other affiliations, other loyalties which shape and dictate how they behave in society and the law needs to take some account of that, so an approach to law which simply said, "There is one law for everybody and that is all there is to be said, and anything else that commands your loyalty or your allegiance is completely irrelevant in the processes of the courts". I think that's a bit of a danger.'
This quotation, combined with the Archbishop's assertion that ‘the application of Sharia in certain circumstances' in the UK was ‘unavoidable' caused extensive press comment.
‘What a burkha!' railed the Sun's front-page. Television channels accompanied reports of the Archbishop's comments with footage of sharia beatings in Africa and elsewhere. The leaders of all major political parties united to condemn the comments and so did a complete sweep of the British press. The country seemed to have awoken to the suggestion that sharia would inevitably become part of British life and, without caring to listen for the detail, the nation appeared to respond with a single resounding ‘no.'
The issue died down until July when the retiring Lord Chief Justice of England and Wales , Lord Phillips, gave a talk on ‘Equality before the law'. He described sharia as suffering from ‘widespread misunderstanding.' Whilst admitting that stoning, the chopping-off of hands and flogging would be unacceptable, he backed sharia principles being applied to marriage arrangements in the UK and was supportive of the sharia finance initiatives which the Treasury had observed since 2002. Lord Phillips said: ‘There is no reason why sharia principles, or any other religious code, should not be the basis for mediation or other forms of alternative dispute resolution [with the understanding] ... that any sanctions for a failure to comply with the agreed terms of mediation would be drawn from the Laws of England and Wales .'
And so the most senior judge in England followed the most senior member of the national church in backing the integration of elements of sharia law into British life. However low-level the sharia they were advocating might have been, they propelled the issue to the forefront of the nation's consciousness. And there it has stayed.
Rightly so. For the story is about more than itself – about what we are as a society, and about what we might become. English common law is one of the cornerstones of our society. As Roger Scruton has written, one of the most remarkable things about English legal thinking is that is has ‘remained concrete, close to human life and bound up with the realities of human conflict.' No greater contrast with the fixed edicts of sharia could be imagined. And so the sharia debate goes right into the heart not just of contemporary Britain, but also about whether the country remains capable of defending its traditions, and capable of drawing lines in the sand.
And it is also about something more: about whether rights which British people have fought for, and attained, after generations will genuinely be extended to all – or whether the process of multicultural fragmentation will extend to allowing people born into certain communities to live parallel lives, judged by parallel laws. The debate speaks of the limits of multiculturalism and the more specific, fundamental issue – of the future of Islam in Britain .
Sharia law is Islamic law. And there is no single sharia. Rather it is an array of competing and contending schools of interpretation derived from two principle sources: the Koran (the book which Muslims believe to have been dictated to Mohammed by God via an archangel) and the Hadith (or ‘sayings' of Mohammed).
The problems for any system of law based on these texts are huge. Not just because of the problem of sources, interpretation and the confusions surrounding the lack of a single recognised figure of authority within Islam. But also because of what one can sum up as the basics of sharia: for what unifies different interpretations of Islamic law is often more revealing than what separates them. Though there is no single acknowledged interpretation of sharia, it is more than possible to summon up its general trends – the directions in which it leans.
The European Court of Human Rights, set up under the European Convention on Human Rights (ECHR) is just one of the institutions worldwide which has deemed sharia to be not just at odds with, but actively ‘incompatible' with human rights. As a signatory to the ECHR and the Universal Declaration of Human Rights (UDHR) Britain has acknowledged the incompatibility of sharia with our own legal system.
Acceding to the same logic from the opposite side, Islamic countries have objected to the Universal Declaration. In 1990 they set up a parallel declaration - the Cairo Declaration on Human Rights in Islam.
Thus both sides have acknowledged in their own ways that sharia and the liberal democratic norms and rights of Western democracies are not compatible. The stumbling blocks are not in mere details. They go to the centre of what liberal democratic societies have fought for centuries to develop and sustain. There is a lacuna at the heart of sharia and Islam itself on core issues – not least the rights of half of the species.
Islamic scriptures routinely accord women half the rights accorded to their male kin. Verse after verse in the Koran discriminates against them in this and other ways. Many Muslims may disagree, but in Islam's core-texts women are repeatedly deemed to possess half the worth of men. If these texts were no longer considered relevant they would not be an issue. Judaism and Christianity also have violent and misogynistic verses in their scriptures. But Judaism and Christianity have moved on from literal interpretation of their texts. They have in the main developed into monotheisms which see scripture as a guide rather than a rule-book.
Islam is different. Partly because Muslims believe their holy book to have been dictated direct by god, rather than merely inspired by god, Islam has a unique doctrinal issue at the heart of the faith. This might possibly be overcome. But for the present Islam remains the only Abrahamic faith which at its highest levels continues to see intransigence as a virtue and interpretation as vice.
Sharia, therefore, mandates how the followers of Mohammed should behave. It governs their lives from the smallest thought to the greatest action. The treatment of women is fundamental to this way of looking at the world. Sharia mandates, for instance, that women accord to strict dress codes. It also rules that they should inherit only half the wealth of their brothers and sees their testimony in court as worth only half that of a man. In sharia a man is allowed four wives, but a woman only one husband. And while a man can divorce his wife with great ease, it is exceedingly difficult for the woman to leave her husband. All this is laid down in the Koran. It also finds backing in the example of the polygamous and – by contemporary standards at least – misogynistic precedent of the life of Mohammed himself. These facts, as we will see, continue to have an extraordinary impact on the lives on women in Britain today.
It is not only in the treatment of women that Sharia law finds itself in intrinsic opposition to British and European norms of human rights and law. Other aspects of sharia are equally incompatible. Consider the treatment of minorities. The Universal Declaration of Human Rights, 1948, mandates that all people must be allowed ‘freedom of speech and belief and freedom from fear' as well as ‘freedom of thought, conscience and religion'. Yet in the Islamic tradition and the modern interpretations of the four main Sunni schools and the Shia school that developed after Mohammed's death, no such freedom exists - either in theory or practice.
Sects within Islam which are disputed by the major schools have been stamped out throughout the history of Islam. Mohammed himself slaughtered whole tribes who did not accept his ‘revelation'. And to this day all schools of Islamic law agree that those who leave Islam – apostates – must be punished with death. Though awarded a certain respect as ‘people of the book' the best that Jews and Christians can hope for in an Islamic society is to be afforded second-class citizen status – a position known as ‘dhimmitude'. Historically, the ‘dhimmis' are permitted to live in a Muslim society only if they accept their second-class station, pay a special tax (the ‘jizya') and submit to the authority of Muslims. ‘Polythesists' – Hindus and others – have not, historically, been so fortunate.
Sharia has further problems – again derived from the sayings, writings and example of Mohammed – including the fact that one of its central pillars is the practice of violent jihad (holy war). Indeed, jihad is supposed to be one of the fundamental duties of all Muslims. The medieval jurist Ibn Taymiyah (1263 – 1328) wrote that ‘Jihad against the disbelievers is the most noble of actions and moreover it is the most important action for the sake of mankind.' The decision as to when and where such jihad is appropriate is open to considerable discussion, but its position at the heart of the Koran and therefore the sharia is not. At its lowest level the practise of violent jihad is mandated in defence of the ummah (the Muslim world) and fellow Muslims from perceived aggression. This is jihad as a defensive operation.
But numerous verses also extol offensive jihad – specifically against non-Muslims. For instance: VIII, 12, ‘I will instill terror into the hearts of the Infidels, strike off their heads then.' VIII, 39-42 says, ‘Say to the Infidels: If they desist from their unbelief, what is now past shall be forgiven them; but if they return to it, they have already before them the doom of the ancients.' IX, 39 reads, ‘If you do not fight, He will punish you severely, and put others in your place.'
Finally, there is the fundamental incompatibility at the heart of sharia of the system of punishment known as ‘hudud'. Sharia punishments range from lashing and beating, to the amputation of limbs (including the amputation of an arm and a leg on alternate sides of the body) whilst death sentences include death by stoning, beheading and crucifixion. Last December the Hamas government in the Gaza reintroduced hudud punishments, including crucifixion, in the territory.
These are of course the most aggressively visible face of sharia and as such are both highlighted by the media and down-played by many embarrassed Muslims. But it would be wrong to think that such aspects are either consigned to history or even to the extreme margins of the faith.
In 2006 the largest group claiming to represent British Muslims, the Muslim Council of Britain (MCB) appointed a new head. Iqbal Sacranie, the previous head of the MCB had been a cause for easy attack for some years for his notorious comments on the Satanic Verses affair. He had said at that time that death was ‘too good' for Salman Rushdie. His successor, Abdul Bari, was apparently cut from the same cloth. In an interview with the Telegraph, he was asked if stoning was ever justified? ‘It depends what sort of stoning and what circumstances,' he answered. ‘When our prophet talked about stoning for adultery he said there should be four [witnesses] - in realistic terms that's impossible.' Islamic cultures throughout history have proved otherwise.
Abdul Bari was not alone in refusing to condemn a strict interpretation of Koranic scripture. In 2003 the Muslim writer (and grandson of Muslim Brotherhood leader Hasan al Banna) Tariq Ramadan declared on French television – in a debate with Nicholas Sarkozy – that as a progressive step there should perhaps be ‘a moratorium' on the stoning of women. Although he was – and still is - widely described as a ‘reformer', Ramadan was unwilling to call for an outright rejection of such medievalism.
The Grand Mufti of Egypt, Ali Gomaa, is one of the most revered authorities in contemporary Islam, and is frequently referred to by Western leaders as a source of wisdom on the interpretation of sharia.
In 2007 the Grand Mufti was reported to have said in a Washington Post – Newsweek discussion that people should be free to choose their religion. This would have been unprecedented from such an authority, meaning among other things, that the traditional sharia punishment of death for apostasy from Islam could be debated and perhaps overturned.
But shortly afterwards, Gomaa declared that he had been misquoted by ‘Zionists'. He was then reported to have declared that apostates from Islam should not be killed unless they then spoke against Islam - in which case they could be targeted. In an official statement he clarified his position: ‘What I actually said is that Islam prohibits a Muslim from changing his religion and that apostasy is a crime, which must be punished.'
In 2006, during Israel 's war with Hezbollah, the Grand Mufti declared that it was the ‘religious duty' of every Muslim to support Hezbollah in their fight against Israel . He is not a fringe figure, nor, by the standards of Islamic spokesmen, is he particularly extreme. The Foreign and Commonwealth Office has courted him and advocated him as an example of a progressive cleric.
I have discussed here aspects of sharia which were obviously not those which Rowan Williams or Lord Phillips were suggesting should be incorporated into British public life. But their centrality to sharia should certainly make members of the British establishment commentators pause.
Given sharia's harsh tenets it is perhaps not surprising that the way it has found its way to acceptance in British life has been not just surreptitious, but soft. In particular, it is the ‘soft sharia' of sharia finance which has provided what Islamists believe to be the first acceptance, and its critics the ‘thin end of the wedge', of sharia in the UK.
Yet the whole concept of sharia finance is a contradiction in terms. In 7th century Arabia , where Mohammed claimed to have received his revelations, there was no organised banking system. There were no bonds, no pensions and no mortages. There was, in other words, nothing in existence akin to anything which people in contemporary Britain know as finance. Yet ‘Islamic finance' or ‘sharia finance' have become commonly heard terms in recent years.
Western commentators and leaders such appear to be under the impression that sharia finance is intrinsic to Islam – an ancient and unalterable position. In fact, as the scholar Timur Kuran has shown in his book ‘Islam and Mammon', it is an entirely ‘invented tradition'. It is not a millennia-old necessity of faith for Muslims. It was made up in 1940s India .
The idea of an Islamic economics ‘that is distinctly and self consciously Islamic is very new' writes Kuran. He notes that a Muslim to whom you mentioned the words ‘Islamic economics' a century ago would not have known what you were talking about. The whole thing was primarily the invention of one man – Abul-Ala Mawdudi (1903-1979), together with Hasan al-Banna and Sayid Qutb, one of three principal god-fathers of the twentieth-century's revival of Islamic fundamentalism.
Mawdudi's explicit hope was that his system of Islamic finance would enable Islam to enter the modern age without having to compromise or Westernise. His newly invented Islamic banking scheme assisted one of his primary goals – the minimalization of contact between Muslims and non-Muslims.
The scholar Patrick Sookhdeo quotes a Mawdudi follower, and senior member of the party Mawdudi founded, Jama'at-i Islami, in explaining that: ‘Resurgent Islam represents a new approach – that is, to strive to reconstruct the economy and society in accordance with Islamic ideals and values.'
In the mid-1960's Islamic finance started to become a minor academic discipline. But it was only in the wake of the 1973 oil-crisis that a number of major Middle-Eastern oil powers saw the real attraction of a separate banking entity for the Ummah, independent of the West. In 1975, the world saw the establishment of the first commercial sharia banks, the Islamic Development Bank and the Dubai Islamic Bank.
The notion of sharia finance grew steadily throughout the 1980s and '90s, becoming, as Mawdudi had hoped that it would, as something which Muslims would more and more feel obliged to participate in as part of their role in being good Muslims.
Like all sharia, sharia finance derives its basic rules from Islam's primary texts. Yet, as I have noted, when it came to finance, Mohammed understandably did not have very much to say.
One fundamental precept of sharia finance is its objection to the earning of interest on investments. This objection is based on one Koranic verse in particular: ‘O believers, devour not usury, doubled and redoubled, and fear you God; haply so you will prosper' (Arberry translation, Book III, verse 125). ‘Riba' (interest) is therefore deemed ‘haram' (‘forbidden').
Christian and Judaic texts also contain condemnation of usury, but have found ways around literal following of the texts. Muslim finance attempts to sustain its distaste for usury, true to the literal telling of the texts, and has therefore developed elaborate methods by which, ostensibly, to obey such verses.
The result is not only convoluted, it is also debatable whether it even obeys the verses in question. As Irfan al-Allawi of the Center for Islamic Pluralism puts it: ‘although they say that this is Islamic banking this is not, because they're taking interest. They change the wording. You're not taking a mortgage out, you're taking a loan and renting a property, so in actual fact it's not sharia.' Nor is the rejection of riba consistent even in the most authoritarian Islamic societies.
On top of the inconsistencies in practice, there is also some controversy over the actual meaning of ‘riba' in Islamic tradition. During Mohammed's time, if a debtor failed to repay a loan made to him his debt would be doubled. This could be repeated each time he defaulted on a loan and could lead to him having to be sold into slavery. Therefore, some scholars argue, Mohammed's words on this matter were simply a response to a particularly brutal aspect of the society in which he was writing rather than an objection to a simple financial practice.
Though there is certainly room for debate, the most literalist schools have in this case – as in so many others - consistently won through. Their objection to riba is particularly intense, refusing to allow the charging of interest to remain solely a sin – as it were – of the heart. For instance, the early and renowned Persian commentator on the Koran Muhammad ibn Jarir al-Tabari (838-923) wrote: ‘Whoever kept dealing with Riba and did not refrain from it, then the Muslim leader should require him to repent. If he still does not refrain from Riba, the Muslim leader should cut off his head.' Prominent contemporary scholars such as Yusuf al-Qaradawi in his 1994 book, ‘The Lawful and Prohibited in Islam', maintain similar lines.
As Allawi pointed out after a visit to Saudi Arabia: ‘In Mecca, the Saudis have these big shopping malls and they rent them out for shops and are making 200%, if they're accumulating interest there. And again that's supposed to be forbidden in Islam, how can you say here we need halal banking. Because I'm sure deep down they know that it's not Islamic banking. They're trying to camouflage it, they're trying to make themselves feel better.'
Despite the obscure origin of the concept of sharia finance, despite the fact that the first generation of Muslim immigrants into post-war Britain would have had no idea what such a thing was, and despite its more recent Islamist connotations, the British government has in recent years chosen to accept it without criticism or even question.
In 2000 the Bank of England, together with the Treasury, formed a working group to look at how to enable the development of Islamic finance within the UK . Since 2003 the Financial Services Authority, Treasury and Revenue and Customs have been introducing changes to the tax and regulatory systems which allowed UK companies to offer Islamic financial products.
In March 2006 the then-Chancellor, Gordon Brown met privately with self-appointed Muslim leaders to discuss the issue of Islamic finance. And on 13 June of the same year he addressed the Islamic Finance and Trade conference in London , organised by the Muslim Council of Britain (MCB) which, I repeat, has strong links to Islamist ideology. Brown, reasonably, called for stronger trading links between the UK and Muslim countries. But he also declared that he wanted to make the UK a centre for Islamic investment. He praised the MCB for its help with reforming recent regulatory measures which had, he explained, now ensured that Britain 's financial frameworks were compliant with sharia. He also praised the MCB's assistance on the expansion of Islamic mortgages which had by 2006, after three years, become worth over half a billion pounds.
The Islamic finance industry is now growing at 15% a year worldwide. Emile Abu-Shakra of Lloyds TSB has said that their research suggests that out of 2 million UK Muslims, three-quarters want banking services supposedly ‘in line with their faith'. The Islamic Bank of Britain is the UK 's first sharia compliant high-street bank, regulated by the Financial Services Authority, and with its own Sharia Supervisory committee, while a further ten major global banks operating in the UK provide Islamic financial services. Despite the fact that one of the leading firms involved in sharia-compliant finance in the UK was Lehman brothers, sharia finance in the UK is booming. In the last decade the market measured by sharia-compliant assets has grown from $150 billion in the mid-1990s to $700 billion in 2007. London now offers a secondary market in sukuk valued at $5 billion. To reflect this growth, the Markfield Institute in Leicester and the University of Reading in 2008 started enrolling for a new Islamic finance degree – the first degree in the UK to be taught by Islamic specialists to obtain an MSc in Investment Banking and Islamic Finance.
Why is this a problem, or a potential problem?
First – an acceptance of Islamic finance accepts the moral stances of sharia. Islamic banks will not deal in any activities deemed to be haram. So there is to be no trade or investment in alcohol, pork products, pornography or arms-trading. There is also, from the point of view of non-Muslims, the pointless complexity of the whole enterprise. Since riba is haram, wealth can only be generated through legitimate trade investment. Profits are shared between the supplier and customer.
In December 2008, the Treasury published a document ‘The development of Islamic finance in the UK : the Government's perspective'. It was more than a financial document – it was a document which revealed a particular vision of a society. Echoing the Archbishop of Canterbury's words, the document described the introduction of sharia-compliant finance as ‘inevitable'. ‘The UK has a strong and proud tradition of openness and flexibility' stated the Economic Secretary to the Treasury in his foreword, ‘which, combined with London 's position as a leading international financial centre and a significant Muslim population, provides a strong foundation for growth.' The document also stated that the ‘The Government believes that the growth of Islamic finance in the UK is beneficial to all UK citizens.'
Above all there is the serious problem of who is to decide what is acceptable investment and what is haram. As the UK government's December 2008 document says, ‘It is the role of Shariah scholars to determine whether a financial product or service is compliant with the Shariah principles.'
Among the serious issues is what happens to the ‘zakat'. Zakat is the percentage of earnings which Muslims are obliged to pay to charitable causes as a ‘tithe' from their earnings. It is up to clerical authorities to decide where the zakat goes. Such authorities currently include the European Council for Fatwa and Research headed by the extremist cleric Yusuf al-Qaradawi. According to former US counter-terrorism official Richard Clarke, members of the Accounting and Auditing Organisation for Islamic Financial Institutions include organizations implicated in the funding of al-Qaeda.
It is the job of just such authorities to decide what at any one time might constitute a haram product. The British, and indeed Danish, economies may be able to cope with a banking system which does not deal in their bacon products. But what would the UK government do if scholars decide that products from allied countries cannot be traded? Would Israeli products develop a haram label? Or, some time in the future, goods from America or Britain herself?
Much will depend on who the government takes directions from, and who it permits to make such judgements. Their record so far has not been impressive. Boards which make the decisions on what is haram and what is not are already thought to have included extremist clerics like Qaradawi, while the UK government's continuing reliance on the reactionary MCB bodes exceedingly badly about the direction in which Britain and specifically Britain's Muslims are expected to go.
In the section titled ‘Involving community leaders', the government's 2008 document states that a future priority is to ‘raise awareness' among Britain 's two million Muslims, using ‘existing community infrastructure, such as mosques, to disseminate information on issues of personal finance.' Once again, the government is promoting dealing with Britain 's Muslims only through the most conservative and clerical avenues. The document goes on to state that, ‘Some industry practitioners have previously considered a roadshow-style event where a group of Shariah scholars would travel to different areas of the UK to educate Imams about the basics of Islamic finance.' Since the document repeatedly cites the MCB as their main source of contact among ‘community leaders' it is not hard to guess what kind of advice would be given, and the direction in which such ‘educated' imams would lean.
The bottom line is that the government has put its policies towards a whole swathe of the population into the hands of clerical reactionaries. It has begun to not just propagate but proselytise the idea that sharia finance is the norm for Muslims.
It has also propagated the idea that sharia finance can be successful as a system. As the world's banking system goes through a state of crisis there appears to be a continuous mirage that some alternative economic system might be available to save us from our woes – perhaps doing so in some more ‘ethical' or ‘charitable' way. It is therefore worth bearing in mind frankly what sharia finance can actually accomplish.
One established critic of sharia finance is Timur Kuran, formerly the King Faisal Professor at the University of Southern California and now at Duke University . In his view, the aim of reducing poverty and inequality by the imposition of zakat has succeeded exactly ‘nowhere'. In fact the zakat system has not only failed to transfer resources to the poor, ‘it may transfer resources away from them.' In Malaysia the zakat system has served as ‘a convenient pretext for advancing broad Islamic objectives and for lining the pockets of religious officials.'
Kuran argues that there is no such thing as Islamic banking, just as there is ‘no distinctly Islamic way to build a ship.' Instead the scheme has ‘promoted the spread of anti-modern currents of thought all across the Islamic world. It has also fostered an environment conducive to Islamist militancy.'
This is why the encouragement given to the growth of sharia by the Prime Minister, the Archbishop of Canterbury, and the former Lord Chief Justice, is so divisive and so dangerous.
The attitude of British Muslims towards sharia law is changing. The majority favour British law but a consistently large minority appear to desire sharia, and the desire appears to be greatest among the young.
A 2006 social research poll for Channel 4 asked 1,000 British Muslims: ‘Would you prefer to live under Sharia law?' 30% of respondents said that, yes, they wanted to live under Sharia law, 15 % were undecided and 54% wanted to live under British law. But Muslim respondents aged between 18 and 44 were twelve per cent more likely than their elders to prefer living under sharia. Other polls have shown similar results.
An ICM poll in 2006 showed that 40% of 500 Muslims polled wanted to see sharia law introduced into parts of the UK. A poll conducted for the think-tank Policy Exchange by Populus the following year showed 37% of Muslims between the ages of 16-24 preferring to live under sharia. And in 2008 a poll conducted by YouGov for the Centre for Social Cohesion revealed that two-fifths of Muslim students in the UK supported the introduction of sharia into British law. The direction of Muslim attitudes is for an increasing amount of sharia.
Sharia finance is only one way in which the concept of sharia values are gaining ground. Last September, Britain's debate over sharia law debate re-erupted, when the Sunday Times ran a major story titled ‘Revealed: Britain's first official sharia courts.' The article reported that ‘Islamic law has been officially adopted in Britain, with sharia courts given powers to rule on Muslim civil cases.'
The Sunday Times reported that:
‘The government has quietly sanctioned the powers for sharia judges to rule on cases ranging from divorce and financial disputes to those involving domestic violence. Rulings issued by a network of five sharia courts are enforceable with the full power of the judicial system, through the county courts or High Court. Previously, the rulings of sharia courts in Britain could not be enforced, and depended on voluntary compliance among Muslims.'
The newspaper revealed that a particular set of Sharia courts run by one Faiz-ul-Aqtab Siddiqi were taking advantage of the 1996 Arbitration Act, which allowed the enforcement of properly agreed arbitrations. The courts, known as the Muslim Arbitration Tribunal (MAT), were boasting not of new legislation, but of their use of old legislation. In fact, arbitration can be carried out by any two adult parties in Britain if the parties have volunteered for arbitration.
In the wake of the Sunday Times piece, the then Shadow Home Secretary, Dominic Grieve, wrote to the Home Secretary to ask for clarification as to whether or not any laws had been changed. The Home Secretary's written response was adamant. Jacqui Smith wrote that ‘I must emphasise that Sharia has no jurisdiction in England and Wales .' She explained that the MAT had been established in 2007 and are ‘a form of "alternative dispute resolution" (ADR), and do not deal with any criminal matters.' She also stressed that ‘If a decision were to be in any conflict with English law then it would simply not be enforceable.'
But the real problem that emerges with the MAT is not that they are practicing perfectly legitimate ADR, but that they had stepped far beyond their remit – and into the realm of criminal law. For the MAT had not only admitted, but boasted, about seven cases in particular which the government and police should have taken an interest in.
In the first instance, the MAT boasted of having over-seen six cases of domestic violence cases which had worked ‘in tandem' with police investigations. In each case the women who had been the subjects of abuse withdrew their complaints from the police whilst the MAT judges had suggested that the husbands take anger-management classes and advice from Muslim elders. The Home Secretary said that there was no evidence from the police that the women had been persuaded to drop their complaints with the police. Siddiqui said that the marriages had been saved by giving the couples another chance.
At an event in November 2008 at the Temple in London, Siddiqui was on a panel chaired by the former President of the Family Division, Baroness Butler-Sloss. He explained that 95% of the cases which the MAT oversaw consisted of mediation. What the remaining 5% were was left uncertain. He stated that in domestic violence cases the MAT offered couples rehabilitation first and an Islamic divorce after that. When questioned about his visions for the future, he argued that a society which ‘accepts' same-sex partnerships and mistresses should be a society which also allows polygamy.
When the Sunday Times broke the news of the activities of the MAT, their remit was consistently represented by the MCB and others as simply equivalent to the activities in Britain of the Jewish courts, the Beth Din. But the Beth Din only hear civil cases – mainly divorce and business disputes. What is more, the Beth Din never represent themselves as anything above or equal to the law. This is important because it is in the case of marital law, and the refusal to tell women in particular that a religious ceremony is not a legally binding ceremony that many sharia courts are treading into ground that is actively illegal.
Consider the case of Gina Khan. She is a Muslim women's rights campaigner based in Birmingham . Several years ago she attempted to get a sharia divorce. Many Muslims have portrayed the granting of extra rights to sharia courts as part of a drive to improve the rights of women. Khan believes that this concern is a fake:
‘What they've really done is use our plight to establish their sharia courts. They are not at all concerned about what has happened to Muslim women. If they were, then the first thing they would look at is the way we get married, and protect us by making sure the marriage is legal. They're not even doing anything about that.'
This transpires to be one of the central problems. A generation of Muslim women born in Britain are failing to learn about their basic rights because the legal system associated with sharia is holding itself out not as merely parallel to British law, but as something which has replaced British law.
Gina Khan took me to meet a woman from Birmingham whose daughter had been married in an Islamic ceremony at home. Her husband left her after a short period of marriage, and it was only then that the daughter discovered she was not married in the eyes of the law. Her husband, a solicitor, knew this. The family appealed to the UK courts for help, but as the mother said, ‘they threw the case out on the basis that there wasn't a recognised marriage.' It turned out that the man was already married and was carrying out a polygamous Islamic marriage.
Worse was to come. The girl's mother sought advice from the leader of Birmingham central mosque, one of the heads of the local sharia courts. Dr Mohammed Naseem is a former candidate for George Galloway's Respect party and one of the leaders of the Islamic Party of Britain, which among other policies advocates the execution of homosexuals. Immediately after the July 2005 London suicide bombings he declared at a press conference in Birmingham that despite forensic and CCTV evidence he did not believe that the attacks had been carried out by Muslims.
Dr Naseem offered the mother no assistance at all. But while she was at his mosque she was aware that women were coming to Naseem to get Islamic divorces. These were being issued – for a price – and the woman saw Naseem taking the money for acting as a judge able to dissolve a marriage. They were paying £130 each time.
Gina Khan says that this do-nothing approach from clerics posing as judges is no isolated case. ‘All around Birmingham ' she says, ‘there isn't a single mosque that supports women in cases of domestic violence.' Nevertheless, Khan says that the West Midlands Police seem to believe that the only way to approach issues relating to Muslim women is through the mosque. "That is a myth. You can't turn to the imams and expect them to support you.'
During the seventh century some of the attitudes towards women which Mohammed came up with might have seemed relatively progressive. But if Islamic scriptures are immutable, as most Muslims believe, then they cannot even start to appear progressive for our own times. As Khan puts it, ‘Our rights have been frozen for fourteen hundred years.'
As Khan points out, women who have escaped countries where there are harsh regimes and laws have often come to Britain precisely because it is a free country. In many cases they come here to escape sharia. ‘To give Mullahs power over the community is a step backward.'
Many of those who have argued for sharia's incorporation into Britain, and those who compare it with the Beth Din, focus on the ‘voluntary' side of it. Surely if a woman ‘volunteers' to be judged by a sharia court there can't be any objection? But the core of the problem is that it is almost impossible for any outside to know if a Muslim woman in the ghettos of Sparkhill in Birmingham, or parts of Luton or Bradford has actually ‘volunteered'.
Khan had been forced to move out of the Muslim area she lived in because of intimidation and threats. ‘There would be pressure,' says Khan. ‘If I said I was going to the police... there's an element of honour and shame that you don't go to non-Muslims. You don't go to the British. We don't want the police at the door because it brings dishonour. You don't want to go to the courts system because it brings dishonour. So then I would be told "You know sharia is our law, so let's go to the sharia council. They will give you justice". There's nowhere else to go.'
The often terrifying pressures upon Muslim women, and others, are completely ignored by those who advocate strengthening the force of sharia law over British law.
As Khan says, ‘This is supposed to be a secular country and for some reason we as Muslim women are ending up at the door-steps of Mullahs, and that shouldn't be happening.' The people who are propelling sharia are, she says, ‘dragging Muslim women backwards.' Her own experience in recent years attests to this. The ‘little kangaroo courts' that Gina Khan went to ‘didn't do anything.' ‘They didn't care that I gone through domestic violence. They didn't care that my husband wasn't providing me with anything. They didn't care that he was going to make me homeless or whatever. They didn't care about none of these things. The only thing that happened was an alcoholic Mullah rang me at 11 o'clock and made a pass.'
In my research two names in particular recurred as examples of the type of people who may well have more and more influence in sharia courts in Britain if such courts were allowed to thrive. They are Sheikh Suhaib Hasan and Anjem Choudary, who is a solicitor.
Sheikh Suhaib Hasan is Secretary General of the Islamic Sharia Council. His vision of a future sharia Britain does not stop at overseeing marital disputes. In speeches on Islamic websites he calls for ‘the chopping of the hands of the thieves, the flogging of the adulterers and flogging of the drunkards.' This, he says will allow the launch of a jihad: ‘Then jihad against the non-Muslims, against those people who are the oppressors.'
Asked whether he approves of the stoning of adulterers he confirms that he does because he ‘never saw any adultery' when he was in Saudi Arabia . He is a spokesman for the MCB on sharia law. In an interview last December he said: ‘Even though cutting off the hands and feet, or flogging the drunkard and fornicator, seem to be very abhorrent, once they are implemented, they become a deterrent for the whole society. This is why in Saudi Arabia , for example, where these measures are implemented, the crime rate is very, very, low.'
In a Channel 4 documentary Hasan said that once sharia law was implemented in Britain, "then you can turn this country into a haven of peace because once a thief's hand is cut off nobody is going to steal. Once, just only once, if an adulterer is stoned nobody is going to commit this crime at all. We want to offer it to the British society. If they accept it, it is for their good and if they don't accept it they'll need more and more prisons."
Suhaib Hasan now runs a set of courts under the auspices of the Islamic Sharia Council. The first court was started in Birmingham in 1982. The organisation says that they have heard more than 7,000 cases in that time, with 95% again relating to divorce. There are now ten courts run by just this one organisation: three in London, with others in Dewsbury, Rotherham and other places. Nobody knows what they say when they are in session, nor what compulsion is felt by those who attend them.
Suhaib Hasan is a classic Wahhabi scholar of the deeply literalist and fundamentalist mindset which has produced so many problems in the Islamic – and wider – world. But compared with Anjem Choudary, Hasan's views could seem progressive.
Anjem Choudary is a follower of the exiled cleric Omar Bakri (founder of the terrorist group al-Muhajiroun). He is one of the few leading members of a number of affiliated, now-banned, organisations who is not in prison. He has been involved in the violent protests outside the Danish Embassy in 2006 and the anti-Pope demonstrations outside Westminster Cathedral in the wake of the Regensburg Address. Though careful to tread just within the law, he has repeatedly been accused of glorifying and inciting acts of terror and the recruitment of violent jihadists. He describes himself as a Judge of the ‘Sharia Court of the UK' and principal lecturer at something called the London School of Sharia. These courts were started by Omar Bakri who, banned from returning to Britain , now lives in his native Lebanon . I asked Choudary what he actually does.
‘We have buildings and we have offices but at the end of the day this is something more national. I deal with cases and I teach in Derby, Leicester, Birmingham, Luton, all around London and anywhere else where people require us.' He styles himself as a selfless helper to Muslims in distress and distances himself from other sharia set-ups.
Choudary advocates an all-or-nothing attitude to sharia. ‘It's a whole system that needs to be implemented together' he says. Yet he conducts marriages in his courts – about 1,800 so far. Asked if he encourages people that he ‘marries' through these courts to register civilly as well, he replies ‘No'.
‘Because once you've gone down that road of registering the marriage... you're automatically really saying "look, we are accepting the [non-Islamic] system that goes with it".
For the hundreds of women who Bakri and Choudary have ‘married' over the last fifteen years then, none may be protected in law. The British state has no idea of who they are, what recourse they have had, or what future they can expect.
Today the sharia snow-ball is gathering speed. The UK government is now preparing legislation that would allow the institution of what they are calling ‘sharia pensions.' There is also the new initiative, advertised by the Guardian last October, of‘sharia car-insurance'.
As we went around the most ghetto-ised sections of Birmingham with Gina Khan – areas she now has to be careful returning to, I asked her what she thought of the authorities, the Archbishops and Lord Chief Justices sitting down South who were speaking as authorities whilst admitting their own ignorance of the system they were propelling – a vision of society which her daughter's generation might soon be expected to live by. ‘I really do wish that these men wouldn't come out – especially men in these powerful positions – and make these statements without having any indication of the consequences for Muslim women. Who is he listening to? Have they come into the communities? Start asking the women – finding some real people. This is Britain, and there should be one law."
The sentiments could hardly be a more appropriate aspiration to the fundamental rights which the Europe's courts and the UDHR are meant to grant us all. But the rights which Muslim women might have expected when they immigrated into Britain two generations ago are not today the rights which Britain appears to expect of them.
Sharia is based on the writings and declarations of a seventh-century tradesman. Individuals should be free to choose whether or his words constitute sacred, divinely dictated, texts and whether to base their consciences and behavior on its strictures.
But the British state and British law cannot accept that these texts must be deferred to. They cannot be the basis for law. This country has fought, and Western society has fought, for many centuries to base law on reason. The greatness of this system is that totalitarian systems of law or governance cannot ultimately prevail because they will dissolve under the glaring light of reason. We have inherited this right, among other sources, through the Judaeo-Christian tradition which believes in the interpretability of its texts as well as from the enlightenment. From Montesquieu and Mill, via a numberless array of men and women, both famous and unknown, our societies have fought against the totalitarian grip of scriptures which men and women were once born into accepting and which they either volunteered to accept or struggled to throw off.
In 2009 most people born in Britain do not have to go through the process of shrugging off laws or re-capturing rights not granted to people in their community. But the piecemeal adoption of Sharia law presents us with an issue which we have so long taken to be settled that we have forgotten how we attained it: the problem is what to do about those who would base laws on textual literalism.
It also presents us with a new challenge, which previous struggles against literalism did not have to tackle in the same way. We are allowing different laws to be applied to people of different ethnic origins. This is the truly shocking thing about the sharia debate. Like the doctrine of multiculturalism (as opposed to multi-racialism) which has allowed this debate to flourish, the encouragement of sharia in British life is based not on equality, or respect for other cultures, but on unfairness and separate-ness.
It is based on the notion that there are laws which would not be good enough for me, but which are good enough for you, not good enough for people born in certain bits or the country, but good enough for others. It enforces difference and makes double-standards acceptable. If its future in Britain is indeed ‘inevitable' then Britain's future as a tolerant and pluralistic society cannot be.
Douglas Murray is Director of the Centre for Social Cohesion. This essay was the winner of the 2009 Charles Douglas-Home Award. An edited version appeared in The Times on 30 December 2009.
This item is available on the Militant Islam Monitor website, at http://www.militantislammonitor.org/article/id/4223