CONCLUSION

Amicable settlement (sulh) and arbitration (takhim) have a long history in pre-Muslim and Muslim contexts. They find sanction in the Quran and in the historical as well as contemporary practices of Muslim communities.

When one looks at the operation of Islamic ADR in the UK and in Singapore, one sees that both jurisdictions allow it to be practised in different ways. In the UK, Muslim legal traditions may be invoked as part of choice of law clauses in arbitral clauses and, in family matters, Muslims may - and as a matter of fact some do - seek to use community-based bodies to deal with matters of (religious) divorce and attendant division of property, amongst other matters. However, these community-based bodies have no formal standing in British law, even though they obviously operate in the ‘shadow’ of the British legal system - its courts and its legal norms. This shadow operation allows British Muslims as the interested parties and the institutions that they may use to help them to exercise a lot of freedom in the normative frameworks that they choose and the detailed substantive outcomes that they structure.

The situation in Singapore is different. Singapore is also accom­modating of mediation and arbitration as part of the practice amongst Muslims in the country. Islamic legal norms are not precluded from arbitral agreements, and in family matters amicable settlement is encour­aged and even facilitated. However, all of this work conducted in the context of important state institutions, especially MUIS and the Shari’ah Court, and the framework of AMLA, which structures the understanding of Muslim legal norms.

Farrah Ahmed and Senwung Luk have written of the possibilities of religious arbitration enhancing personal autonomy.^[411] In their piece they explore ‘whether there are reasons based on personal autonomy, which count in favour of religious arbitration [including but not limited to Muslim religious arbitration] in family matters’.^[412] In short, they highlight the autonomy-enhancing potential of religious arbitration because it facilitates or, it might be said, acts as an expression of, religious practice.^[413] Crucially, however, for the autonomy to be realised, the religious practice being promoted must be one that the individual defines for herself or himself. As they say: ‘Religious people can use religious arbitration to order and organise their lives according to the religious norms they believe in.’ This point is echoed by Michael Helfand, who notes that from the perspective of faith communities, religious tribunals can afford the communities ‘the opportunity to resolve disputes in accordance with deeply held and shared religious values’.^[414]

In this light, we can return to our two case studies. As between the two structures we have seen in the UK and in Singapore, which is more conducive to the autonomy-enhancing potential of religious arbitration, and, one might add, to religious mediation? The argument that has sought to be presented here is that notwithstanding the status of Muslim legal norms in Singapore, and the institutions of MUIS and the Shari’ah Court with their venues and structures that facilitate and encourage settlement, it is the UK’s more loosely structured and privately arranged system that provides Muslims with greater scope for autonomy-enhancing amicable settlement and arbitration of disputes.

Of course, one might think that this looser structure raises its own problems. One notable problem is the potential for private arrangements to be (more likely) sites where coercion or inequality of bargaining power hold sway. Relatedly, private arrangements might also lead to dispute settlements that violate important norms of public policy, such as those related to gender relations or the priority of interests of children.^[415] The risk here is that private arrangements might fall ‘under the radar’ of scrutiny and public accountability. However, the UK system suggests that some of these concerns might be allayed by two factors. The first is that any private arrangements still fall under the shadow of the state system and may be reviewed by this system and its institution. The second is that private arrangements are not forced on parties but entered into voluntar­ily. The capacity for this voluntariness to be checked by the involvement of officials may in fact commend the Singapore model in this regard. But if the great genius of the ethos of ADR is to give power to the parties themselves to operate freely and if this value - whether called autonomy or something else - is to be paramount, then, on balance, one may still prefer the UK’s structure to that of Singapore.