Introduction
In 2008 the former Archbishop of Canterbury, Rowan Williams, held a speech at the Royal Courts of Justice on the usage of different systems of law in the UK. He aimed to tackle, “the question of whether there should be a higher attention to religious identity and communal rights in the practice of law” and considered “a delegation of certain legal functions to the religious courts of a community”,1 explicitly focusing not only on Muslim, but also on Christian and Orthodox Jewish communities.
Williams discussed the fact that individuals were able to be members in “different but overlapping sets of social relationship”[4] [5] and argued that one could imagine “a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters”, which could, “include aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution”.[6] He acknowledged that such a, “scheme allowing for supplementary jurisdiction will [not likely] be simple”, but “seems unavoidable”[7] in a pluralistic state in which individuals should not have to choose whether to be loyal to their state or their culture.Following this speech there was an agitated, public debate fuelled by the media and featuring statements by public persons including politicians, representatives of the judiciary and clerics, women's rights groups and others. The media used dramatic wording: a BBC headline on the day following Williams' complex and long speech - of which only brief excerpts were quoted by the media and often out of context - read “Sharia law in UK is ‘unavoidable'”.[8] The Daily Mirror published an article stating that “[t]he Muslim tribunals are exploiting a loophole in the Arbitration Act 1996”.[9] Its author, Jason Beattie, furthermore claimed that judgements arrived at in “Islamic courts” in the UK “are then enforced through county courts or the High Court”,[10] giving the impression - at least in name - that these institutions were real courts, acting somewhat in the shadows of English law but at the same time being acknowledged insofar as their “judgements” were already and unconditionally enforced by English courts.
The media repeatedly wrote about “sharia courts”[11] or “Islamic courts”,[12] sometimes meaning sharita councils, sometimes the Muslim Arbitration Tribunal (mat), sometimes not making clear which institutions they were actually talking about. The institutions are accused of acting ultra vires by handling cases involving domestic violence, of preventing criminal proceedings and of discriminating against women.[13] [14] [15] [16] [17] Since 2008, mat as well as sharita councils have repeatedly been subject of political discussions.n The Casey Review, commissioned in July 2015 by the then Prime Minister, David Cameron, and Home Secretary, Theresa May, and published by Dame Louise Casey in December 2016, summarises that “Sharia Councils and other parallel legal systems” are using “discriminatory practices against women which, in some cases, are causing serious harm” and furthermore allowing or condoning forced marriage, beating and rape?2 Muslim Arbitration Tribunals are also said to be “arbitrating on issues outside of their jurisdiction, such as child custody and domestic violence.’43Five months into the public debate the then Lord Chief Justice, Lord Phillips of Worth Matravers made a public statement backing Williams' position in which he stressed that, as English law itself offered the opportunity to choose a law other than the law of the land, there was “no reason why principles of sharia law or any other religious code, should not be the basis for mediation or other forms of alternative dispute resolution”?4
While politicians in the House of Lords have been discussing amendments to the relevant legislation and thus facilitating or prohibiting such alternative dispute resolution based on religious principles, the Muslim Arbitration Tribunal carries on with its business. The unique feature of mat in comparison with sharita councils, which mainly handle cases of Islamic divorce, is that mat defines itself through the ability to also perform arbitrations and engaging English legal professionals such as solicitors and barristers, as well as trained mediators and arbitrators.15 This chapter focuses on the mat's eponymous feature of offering arbitration compliant with Islamic principles.
One central question is about how mat deals with and uses the two legal systems - English law as the law of the land that actually sets a frame for arbitration, and Islamic law, which obviously is what distinguishes it from other arbitration tribunals and defines its main clientele. Does mat manage to integrate the two systems into each other? How does the institution react to possible contradictions? This chapter will look into the main aspects of criticism and accusations made against mat. Is the criticism appropriate? Are there aspects in mat's procedures and conduct that are problematic from the point of view of English law? Would attempts to enact new legislation like the Arbitration and Mediation Services (Equality) Bill procure the benefits intended by its supporters and actually force mat to change their practice accordingly?First-hand information on the institution and its procedures was gathered in interviews with its chairman, Faizul Aqtab Siddiqi, and another member of staff?[18]
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