Shaykh Daoud’s Blog

Sharia Law or One Law for All

with 2 comments

In the United Kingdom today, 29 June, the newspapers have been carrying write-ups about the latest Civitas Report “Sharia Law or One Law for All”, which claims that there are operating in Britain some 85 tribunals purporting to administer Sharia law, mostly in the contexts of financial and family disputes, and concludes that they should no longer be recognised under the Arbitration Act 1996.

Most of this media reportage shows, to my mind, an unwillingness to dig deeper than the superficial briefing that attended the launch, and the rather shallow content of the document itself.

There have been a couple of comments from politicians, too. Two of these were quoted in the Daily Mail, for example.

Patrick Mercer MP was reported to have said on Sunday, 28 June, “We have an established law of the land and a judiciary. Anything that operates outside that system must be viewed with great caution… In a sovereign state there must be one law and one law only”.

And Philip Davies MP, was quoted as saying, “Everyone should be deeply concerned about the extent of these courts. It leads to a segregated society. There should be one law, and that should be British law. Everyone should be equal under one law.”

I actually agree that the law should be universal, but it is either ignorant or disingenuous to take the approach that these two are supposed to have.

Since the 1950s, the arbitrations of the Beth Dins have been supported by the British legal system even though there has been some disquiet expressed within the Jewish communities about the rulings of some of these. It would be inequitable, in the context, to deny the Muslims the same privilege, whatever disquiet might be felt.

This isn’t to say that some ‘policing’ and regularising is not possible; in fact, these may very well be desirable – and urgently so – but the Report doesn’t address this.

Secondly, the United Kingdom has actually three legal systems – that of Northern Ireland, that applied in England and Wales, and Scottish Law. And within these there is the frequently frictional relationship between the ancient Common Law and a Statute law that is increasingly importing alien jurisprudential concepts from Europe – what I presume the Report is referring to when it states, “Sharia courts operating in Britain may be handling down rulings that are inappropriate to this country because they are linked to elements in Islamic law that are seriously out of step with trends in Western legislation”.

So, how actually did this problem come about; and what is it anyway? And how can it be ameliorated?

To deal with the last part first: Britain’s imperial history can provide the needed solutions, or rather the legacy of it can.

One of the things that marks out the Common Law countries from the rest is the importance of precedent established by Case Law. Rulings from one of these countries are often used to form an opinion in another. A case in point is the definition of ‘religion’ that was adduced in Australia and which is now used in New Zealand, and has been cited in Canada, the UK, and the USA.

There is a lot of such sharia Case Law.

And, let us remember, the Common Law was taken by King Henry II in the major part from the Maliki fiqh as administered in Caliphal Spain and its near neighbours in Sicily and north Africa. It can be said that for the most part British Common Law is “sharia compliant” (an awful phrase invented by one umbrella body).

In British India, there were two jurisprudential documents – the Indian Civil Code and the Indian Penal Code – that formed the law that was administered by the courts. Incorporated in these was the sharia according to the Hanafi, Shafi’i, and various Shi’ah rites as previously administered in the sub-continent. These courts were British Crown courts; and these legal codes and their precedents are available. This system has continued after Independence in 1947, and, in fact, the case law has continued to develop.

Malaysia has a system of sharia courts – the Mahkamah Syaria – that applies the civil law of the sharia, mostly of the Shafi’i, but with account taken for followers of the Hanafi school. This system is modelled on the British Courts. It also applies Case Law, many precedents being cited from British India and elsewhere in the Commonwealth; and, indeed, has generated its own body of Case Law.

With no difficulty at all, here is a system that can ameliorate the tribunals which are the subject of the Civitas Report. The obvious hurdles are enabling the Case Law, which can be done simply by Act of Parliament or even Order in Council; designing the tribunals in such a way that they fit into the British system, and I’m sure that the Malaysians would be most helpful in that; and the qualifications of those sitting on them. Herein lies the major problem, which is linked directly to the educational attainments of the imams of the mosques.

There needs to be a recognised means of certificating the imams as being fit to do their job, followed by continuation training to keep them abreast of the developments within the communities around them.

However, the imam of a mosque is not a judge and never has been necessarily a qadi. He may of course function in the ‘social worker’ role of the proverbial vicar or – more likely, vicar’s wife – giving advice and sorting out disputes, as is done by Christian ministers and Jewish rabbis.

I suspect it is this function that is being fingered by the Report as constituting most of the 85 sharia ‘courts’.

But for proper judgements through proper courts – if the authorities are truly interested in dealing with this – it would be necessary to have a body of quda (the plural of qadi) and muftis. These have to be trained and experienced, just as barristers, attorneys, and justices have to be. But most important they have to be ‘law officers of the Crown’.

It is a well-known principle of the Shariah that the law of the land must be obeyed. Unfortunately too many imams are ignorant or capriciously dismissive of this. This, as with many such problems that beset the mosques and their parishioners, is a regrettable consequence of the ignorance and stupidity of successive governments and their advisors for quite a long time. This doesn’t mean that it should be accepted or allowed to continue.

Although one is extremely reluctant to see Westminster extend any more its revolutionary grab for competence at the expense of the Constitution, and in particular of the Crown, there are two matters that are directly relevant to the subject of the Civitas Report.

These relate to the legitimacy of the British Crown in appointing qadis and imams, and an Office to oversee these people and their professions. Although such legalistic niceties are commonly derided in fashionable circles and their newspapers, for this to be acceptable to Muslims in the UK, let alone world-wide, under their Shariah such a competence would have to derive directly from the Caliphate.

And, as a matter of fact, this is actually the case.

Towards the end of the 19th Century, two significant events took place.

One was, in 1889, when the Caliph, Sultan Abdul Hamid II jannat makan, appointed Abdullah Quilliam to be the “Shaykhu-l Islam of the British Isles”, and this was endorsed by the Emir of Morocco, the King of Afghanistan, and the Qajar Shah of Persia. The Office of Shaykhu-l Islam was the adminstrator of the system of qadis, imams, and muftis in the Ottoman Empire, and the implications of using this title for the bestowal on Quilliam cannot have been missed. It is legitimate to speculate that it was, in fact, intentional.

At about the same time, the Caliph, conscious of the vast Muslim population of the British Empire, appointed the Queen-Empress a beylerbeyi: in essence a tributary ruler over Muslims under the Caliphate.

The authority to make Islamic religious appointments, and to regulate the administrations of mosques and tribunals, including the appointment of the Office of the Shaykhu-l Islam, in the United Kingdom and Crown Dependencies rests with Queen Elizabeth II as the great-great-granddaughter of Queen Victoria. And, by residuary sovereignty, in the Republic of Ireland with the President.

Perhaps it is time to petition HM to revive this august Office of State? It is, of course, predominantly administrative, and would bring in expert advisors as needed. It could even commission fatwas from such authoritative sources as the University of Al-Azhar, when needed. But the trouble is who has the stature to fill it?

Before he died in 2006, the obvious choice would have been Dr Muhammad Zaki Badawi KBE, yarhamahu-Llah. But who now? At the time of his death I said that we’d miss him more that people realised. But maybe the Man would grow into the Office?

Something needs to be done. The “Islamic specialists” clearly don’t have a clue, and I don’t think that this Civitas Report advances any valuable solutions to the problems identified. One could ask what therefore was the point of the Report, other than to further feed the barely disguised frenzy of Islamophobia in the media and among politicians? I hardly think that would have been its intention, although it might become its effect.

Civitas is a Latin word, meaning ‘citizenship’. So, in the same language, as Laocoon said to his countrymen according to Virgil, Equo ne credite, Teucri. Quidquid id est, timeo Danaos et dona ferentes: “Don’t trust the horse, Trojans. Whatever it is, I fear the Greeks even bearing gifts.”

He was, of course, right.

© D Rosser-Owen 2009 All Rights Reserved

Written by David Rosser Owen

June 30, 2009 at 12:38 am

Posted in Uncategorized

2 Responses

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  1. As-Salaamu ‘alaikum,

    In my opinion, we don’t need a government-sanctioned head shaikh or whatever. Quite apart from the dubious argument about Queen Victoria (she was a monarch in her own right with no need for a sinecure from the Ottoman Sultan, and only rulers who pay tribute are tributaries), we would either end up with a sectarian figure, a controversial lightweight mufti whose rulings were often disregarded by the public, or someone regarded as an Uncle Tom. Zaki Badawi’s hijab ruling would have put him neatly into that category.

    Yusuf Smith

    July 1, 2009 at 5:01 pm

  2. Dear Sheikh Daoud,

    As-salamu `alaykum wa rahmatullahi wa barakatuhu,

    We’ve spoken of this before, but having asked the various specialists in this, I couldn’t find any documentary evidence that the title Sheikh-ul-Islam of the British Isles was anything other than honorific and specifically that the office was formally recognised by Queen Victoria. I outline my case here:

    If some evidence can be turned up of course then the possibility of reviving the office would be legally open to us. I compare the case of this office to that of the Reis-ul-Ulama in Bosnia and the use of a manshur from Istanbul until 1924 at least. But there are striking dissimilarities between the two cases.

    That still leaves open the question of desirability of reviving the office that Yusuf raises and to which I am rather inclined myself, although I am open to being persuaded otherwise.

    Wa s-salam, Yahya

    Yahya Birt

    July 17, 2009 at 5:26 pm

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