Islamic Arbitration, Islamophobia and some concerns - Guest post by Jay Sayta

Jay Sayta's post on Panchayat's as a mode of Alternative Dispute Resolution has received appreciation from several of our readers. In this post, he discusses the emergence of Islamic arbitration in the West and certain concerns surrounding it.

Both Islamic extremists and
Islamophobes find this slogan
attractive, though in different senses.

Muslim population has grown exponentially in the West. Most of the Muslims in the West are immigrants from Asia and Africa, migrating to the European countries after the era of decolonisation. Currently, there are around 16 million Muslims in the European Union, accounting for around 3% of the total population. The members of this sizeable Muslim population have attempted to use Sharia Law to solve various legal problems. This has led to the emergence of the concept of ‘Islamic Arbitration’- for Muslims having a dispute to legally solve their dispute using the principles of Sharia Law. The United Kingdom allows such ‘Islamic Arbitration’ centres to function legally within the framework of the Arbitration Act, 1996. 

What is Islamic Arbitration? 

Islamic Sharia Councils are now recognised as Arbitration Tribunals in the United Kingdom under the 1996 Arbitration Act, and are a part of the Alternate Dispute Resolution (ADR) procedure available to UK citizens. These Sharia Councils have the power to hear all civil and family matters; all parties must however agree to have the matter judged by an arbitrator. The arbiter’s order is final and binding on both the parties and the parties cannot appeal against the decision of the arbiter, unless there has been a clear violation of any existing law in the United Kingdom. The aggrieved party cannot appeal only on the ground that he/she would have been treated differently in a regular Court unless the judgment is outrageously unfair. The Muslim Arbitration Tribunal (MAT) thus provides arbitration services in more than six cities in the United Kingdom. Some of the matters which the MAT deals with include: forced marriages, domestic violence, commercial disputes, inheritance disputes and mosque disputes.

Similarly, in the United States, religious tribunals, including Sharia Councils are allowed to adjudicate on Civil and Family Matters under a Federal Arbitration Act. However, an aggrieved party is allowed to appeal in regular court on certain grounds. In Canada, a tribunal named ‘Islamic Institute of Civil Justice’ has been formed to allow Muslims to settle disputes through arbitration. However, the province of Ontario has stripped all religious tribunals of legal force. It is interesting to note that continental Europe has not been confronted with problems relating to religious tribunals as their legal system leaves little room for cultural exception.

However, there are various problems associated with the emergence of Islamic Arbitration in the West.

Unequal treatment of men and women

Critics of Islamic Arbitration have pointed out that principles of Sharia law is biased in favour of men and fear that increasing use of Islamic Arbitration will only result in exploitation of Muslim women. For example, under Sharia law a woman inherit half of what a man inherits, a man can have up to four wives, a man can divorce his wife arbitrarily and the husband necessarily gets custody of the child after divorce.  It is important to note, that many immigrant Muslim women in the west are likely to be dominated and coerced by elderly men to abide by the decision of the Sharia tribunals. Moreover, Sharia attaches less value to the statement of a female witness that to that of a male witness.

Brutal and inhuman punishments

Sharia law often imposes brutal and inhuman punishments. Punishments like public whipping or stoning are often meted out by the Taliban. Though most politicians have condemned the brutal punishments delivered by Sharia courts, there are legal provisions allowing the same Sharia law to function within the country’s legal framework.  Courts in Saudi Arabia and Nigeria (based on Sharia law principles) have in the past awarded brutal punishments for offences like adultery. The West would find it difficult to accept this legal system based on such harsh punishments. Therefore, at least in criminal matters, the idea of a parallel Islamic law will be unpalatable in the Western context.

Parallel judicial system and ‘Islamophobhia’  

Critics point out that these Islamic tribunals are a parallel judicial system based on different set of principles disregarding national values and customs.  They argue that such parallel means of dispensing justice defeats the principle of ‘one law for all.’

Another point of concern is the increasing ‘Islamophobia’ (hatred towards Muslims and Islam) in the Western world. The Western world has reacted strongly to the increasing influence of Islam in their culture. France has thus reacted by banning the burqa and Switzerland by banning minarets. Plans to construct a mosque near ground zero (the place where the twin towers of the World trade centre stood before the 9/11 attacks) in New York evoked vociferous protests from a large section of Americans. The plans to construct the mosque were subsequently cancelled after an American Pastor; Terry Jones threatened to burn the Quran.  

These incidents show that the Western world will not react kindly to any refusal by Muslims to adhere to national customs, traditions and practices. The far-right British National Party (BNP) has severely censured the government for allowing Muslim tribunals to function under Britain’s Arbitration laws. The BNP went further to call these Muslim tribunals as imposition of Sharia law in UK. The BNP has also said that such pro-Muslim policies will lead to Britain being ‘colonised’ in the next 30 years.

Conclusion 

The emergence of Islamic Arbitration as an ADR mechanism in the West will only increase the West’s Islamophobia. The increasing popularity of these Islamic tribunals amongst the immigrant Muslims will be seen as their refusal to adopt local customs, traditions and values. It would also be seen as Muslims’ attempt to assert their identity, rejecting Western values, philosophies and ideas. The majority of Western population has so far, not reacted kindly to this show of ‘Islamic triumphalism’ in their own country.  This became apparent when majority of the Swiss population voted in favour of banning the construction of minarets.    

Statements like terming the rise of Islamic tribunals as the first step towards imposing Sharia law and fears of ‘colonisation’ of Britain and other countries by Muslims though unfounded and exaggerated, represent the growing fear and apprehensions of the Western world.