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Shariah Councils as ADR fora

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Shariah Councils as ADR fora

Shariah Councils have been described as ‘internal regulatory frameworks’ (Menski 1998, p 396), ‘complex informal networks (Poulter 1998, p 61) and sites where ‘new ijtihads’13 are taking place (Yilmaz 2000, p 1). This form of Muslim self-organisation is characterized as ‘Muslim legal pluralism’ and has led to extensive discussion on a possible conflict of laws scenario with English law (Carroll 1997; Hamilton 1995; Poulter 1998). Indeed, existing literature presents these bodies as evidence of an emerging parallel legal system whereby Muslim family laws are reconstructed to accommodate the needs of diasporic Muslim communities in Britain (Bunt 1998; Menski and Pearl 1998; Poulter 1998; Yilmaz 2001). While this literature has been valuable in identifying the ways in which Muslim family law may operate, it tends to omit any discussion on the key issue of ‘power’. The lack of empirical research means that Shariah Councils are implicitly presented as unified with little recognition of the internal and external contestation of power both within and between them.

Beyond these initial difficulties we learn from existing literature that Shariah Councils operate as unofficial legal bodies specialising in providing advice and assistance on Muslim family law matters. They are neither unified nor represent a single school of thought but instead are made up of various different bodies representing the different schools of thought in Islam.14 In essence, the Shariah Council has three main functions, mediation and reconciliation, issuing Muslim divorce certificates and producing expert opinion reports on matters of Muslim family law and custom to the Muslim community,15 solicitors and courts. Within this community framework of dispute resolution Shariah Councils act also to manage Muslim presence and preserve Islamic legal principles within non-Muslim societies. (Bunt 1998, p 103). The process of dispute resolution therefore is produced through various discursive practices and can only be understood in relation to the locus of power in which they are embedded as community regulatory frameworks. By this I mean the ways in which the religious community is creating a process of dispute resolution which complements discussions on homeland, belonging and human rights and which defines a role for Islam in a non- Muslim environment.

    1. History and Background

The history of Shariah Councils in Britain can be traced to a wide set of social, cultural and political developments over the past 30 years. Cultural and religious diversity coupled with the perceived threat posed by the visibility of racial groups led to a process of integration under the rubric of multiculturalism. In the course of the 1970’s and 1980’s the was an expansion of organisations which focused on the cultural and religious specificity of the minority group in question and the practice of minority religious values in the public space thus assumed a renewed political importance. The continued political mobilization of British Muslims today has led to questions of Muslim integration, and the state, in facilitating multicultural policies, it is argued, has led to cultural separatism and community divide. While some studies attribute the emergence of religious organisations to state initiatives under the context of multiculturalism others see the communities themselves forging closer ties with family and community for a multitude of reasons. For example, in his analysis on the relationship between the emergence of cultural and religious organisations and ‘ethnic governance’,16 Vertovec (1996) concludes that minorities have their own reasons for choosing their ‘idioms of mobilization’ as well as ‘their own orientations, strategies and levels of experience that affect the kind of state liaisons which they foster and maintain’ (1996, p 66).
The relationship between mosques and shariah councils illustrates the conditions in which these mechanisms of ADR have emerged. From the initial stage of a prayer hall, to the appointment of Imams, the widespread construction of mosques and the emergence of Shariah Councils we can see the norms, symbols and values embodied within these structures of community regulation. In his study of Muslims in Bradford, Lewis argues that the socio-political establishment of Muslims in Britain via mosques and community organisations indicates a shift ‘within the migrants self-perception from being sojourners to settlers’ (1996, p 56). In particular, it is the close relationship to mosques that has shaped the type of Shariah Councils that we see emerging in Britain. It is useful to explore this relationship between mosques and Shariah Councils if we are to understand the establishment, regulation and legitimacy of these bodies within local Muslim communities.
As Lewis points out, ‘[t]he creation of mosque reflects the growth, location and differential settlement patterns of distinct regional and linguistic communities’ (1994, p 58). Consequently, we see the proliferation of different mosques each fragmented according to village-kinship, sectarian affiliation and intra-ethnic differences. Hence in Britain, mosques cater to the needs of Muslims of various different ethnic backgrounds including Punjabis, Mirpuris, Pathans, Bangladeshis, Yemenis, Somalis and Gujaratis. In larger communities, mosques are not only based on ethnic differences but also split along the differential doctrinal teaching. In Britain the different Islamic schools of thought have been identified as Barelwi, Deobandi, Jama’at-I-Islami, Ahl-I-Hadith, Shi’a and Ahamadiyya (see Lewis 1994, p 57). Most Pakistanis in Britain belong to the Barelwi tradition and consequently mosques are closely aligned to the sectarian affiliation of the local community (see Shaw 1988; Werbner 1988; Geaves 1996; Lewis 1996). Thus the emergence of Shariah Councils in Britain must be understood in this context of social, cultural, religious and political change.17
In this study, three Shariah Councils had been established under auspices of a mosque by the Imam. Prior to this establishment, individual Imams undertook the work of the Shariah Council providing spiritual and religious guidance in matters of Muslim family law to Muslims including settling marital disputes and issuing Muslim divorce certificates. In his study, Bunt (1998) found that Imams found this work to be time-consuming and took them away from their traditional duties of providing spiritual guidance and sermons for Friday prayers. This was confirmed by the findings in this study; Dr. Nasim at the Birmingham Shariah Council explained:
‘We realized that some form of body was needed which could resolve family disputes. Before the Shariah Council it was the Imam who used to deal with these issues and this caused problems not only because he was not versed in dealing with all the issues that confronted him but he didn’t have the time on top of his other duties. So in that respect the Shariah Council was formed. This body is led by religious scholars including Imams.’
Thus a key feature of Shariah Councils is the attachment to mosques which is closely interlinked to the aims and objectives of the mosque in question. Most Shariah Councils continue to be based in mosques and Imams continue to serve as religious scholars on the Council’s body. In this study all the Shariah Council’s had close contact with a mosque and indeed were closely aligned to one particular mosque. There are however two key differences between mosques and Shariah Councils. Firstly, unlike mosques, Shariah Councils are not voluntary bodies and therefore are not subject to public body regulation (thus they do not need to reveal details of their organisational structure nor their financial status). Secondly many mosques in Britain are organised on ethnic and kinship allegiance reflecting the specific needs of different groups of Muslims whilst Shariah Councils in this study aimed to cater to the needs of all Muslims irrespective of ethnic, racial or national background.
Most importantly, the ways in which Shariah Councils constitute as unofficial dispute resolution mechanisms reflects how they are situated within local Muslim communities. Hence by simply focusing on the paradigm of legal pluralism or dispute resolution, obscures the complex contestation within the ‘community’ over its ‘identity’ in multicultural Britain. And, by positing these processes in the terms of either assimilating into majority society or exercising their choice not to ‘belong’ leaves unaddressed the issue of the internal dynamics of power. This is not of course to deny that these bodies do not share a set of ‘common characteristics’ based on religious norms and values, clearly they do; and in doing so they identify in their unity of belonging to a universal Muslim community. In this way, their mark of otherness derives from a shared set of understandings with little need or desire for state recognition. Instead the private sphere provides the space and opportunity for them to develop forms of communal autonomy and the regulation of communities, away from state interference. From this perspective Shariah Councils do fit the model of the ‘semi-autonomous social field’ (Moore 1978) since this approach places very little demands on the state and the councils remains autonomous but also recognise the power of state law. However as fieldwork data suggests, given the strong desire to ground and establish these unofficial legal processes within the framework of state law, some Shariah Councils seek the establishment of a parallel legal system in Britain. For this to be met, the universal language of rights, autonomy and choice are reformulated within particularistic claims for recognition (based on religious specificity) as the basis for differential treatment.
We can see from the discussion above that Shariah Councils have developed and have been shaped by different mosques and their structuring in this space has shaped their self-definition and identification. Moreover, the way in which this discourse has been transformed within the context of the ‘British Muslim diaspora’ raises questions regarding their legitimacy under Islamic law. For example, how has the experience and position of the Pakistani Muslim community in Britain transformed Shariah Councils from their origins of existence? This of course raises questions on the relationship between migration, diaspora and belonging (Brah 1996; Werbner 2000). In this study, within each of the 4 Shariah Councils, it is notable that Pakistani Muslims were involved in setting up the organisations and continued to be actively involved in the administrative affairs as well as acting as religious scholars. It might be observed therefore that the primary guidance for these individuals in determining the type of Shariah Council set up reflects their background, position and credentials in Pakistan. For example, within some mosques, Imams are deliberately recruited from Pakistan to keep alive localised cultural practices.18
It is clear that Shariah Councils in Britain have potential overlaps with social and legal processes in Pakistan. In doing so, many reformulate cultural practices of the specific Pakistani Muslim communities in Britain to fit within this framework of dispute resolution. But it is important to note that different sets of power relations and normative values interact with this specific form of dispute resolution and hence the process of cultural reformulation is far more complex. Interviews with religious scholars revealed that many draw from their experiences as working as Imams in Pakistan. Dr. Suhaib Hasan at Islamic Shariah Council explained:
‘In Pakistan I have many friends who are learned scholars in Islamic matters concerning marriage and divorce. I often consult them for advice and this helps our work immensely.’
This development of Shariah Councils to mirror the local ethnic profile of Muslim communities has however been challenged and rejected by other religious scholars. In an interview at the Muslim Law Shariah Council, Dr. Badawi was keen to distinguish between the role of a Shariah Council and its location, often within local Pakistani Muslim communities:
We work on the basis of Islamic principles and we draw upon a wide range of school of thought in Islam. We are not made up of just Pakistanis and we do not adhere to Pakistani law. We are here for all Muslims.
However, Dr. Saeeda at Birmingham Shariah Council acknowledged that she conceptualised dispute resolution in relation to the needs of the Pakistani Mirpuri community in Birmingham. This simply meant she was aware of localised cultural practices and hence the process of dispute resolution was expressed via an ethnicised idiom.
With the seemingly visible emergence of Shariah Councils in Britain their role as dispute resolution mechanisms has more recently come under scrutiny. In his study, Warraich points to the conflation of South Asian Muslim family laws, localised cultural practices in British Muslim communities and a rigid application of English family law as the contributory factors leading to the emergence of these bodies ‘who have appropriated for themselves the role and position of parallel quasi-judicial institutions (2002, p 11). He argues that ‘the lack of space in the English system for appropriate solutions to dilemmas facing people’ has led to this confusing situation (2001, p 11). Instead state law must create the space within its existing framework and recognise and adapt to the complexities of diversity and pluralism inherent in the lives of individuals (2001, p 12). Yet one of the difficulties with a focus solely upon state law means that subsequently we learn very little about how the boundaries between state law, personal law and privatized dispute resolution within diasporic Muslim communities are in fact being contested, challenged and appropriated in specific contexts.
The emergence of Shariah Councils in Britain can also be traced to a diverse set of social processes within Muslim communities. According to Yilmaz (2001), there are four conditions under which Shariah Councils emerge in Britain. Firstly, under Muslim tradition, family issues are purposively left to ‘extra judicial’ regulation and diasporic communities continue this tradition and resolve disputes within this sphere. Secondly, Muslims do not recognise the authority and legitimacy of western secular law on par with Muslim law and therefore deliberately choose to resolve disputes through a non-adversarial process. Thirdly the familial notions of honour and shame prevent familial disputes from being discussed in the ‘public sphere’ and subsequently religious laws are given greater potency and legitimacy within the communities. And finally, the failure of the state to recognize these plural legal orders has led to the development of these ‘alternative’ dispute resolution processes within the private sphere (Yilmaz 2001, p 299).
In short, what we see in this analysis is the development of a parallel legal system in opposition to state law. Yet conceptualising unofficial dispute resolution in this way is premised on the homogeneity of ‘Muslim communities’ with little analysis on how these bodies are constituted within the local communities themselves. The primacy of a Muslim identity means that we learn very little about cultural and religious practices that may affect the autonomy of the users of Shariah Councils (more often women) and there is very little discussion on how such processes are contested, redefined and possibly open to change. It is to these questions to which we now turn.

    1. Modus Operandi: Shariah Councils ‘In Action’

The fact that existing literature on Shariah Councils is not based upon empirical research means that we are given very little insight into how these bodies constitute as ADR bodies within local Muslim communities. In this way it has been simply assumed that they operate in the private sphere of family, home and local community with little analysis of potential conflicts within the communities in which they are located and their interaction with state law. In this study empirical fieldwork with Shariah Councils included content analysis of case-files and observation and interview research.19 The observation research aimed to explore the extent to which marital disputes are settled within the context of family, home and community by the intervention of non-state agencies such as Shariah Councils. In this respect the aim was to examine the context in which this form of non-state intervention take place and consider how these mechanisms of dispute resolution that have traditionally been defined as non-legal may co-exist alongside state law in Britain. The data provides an interesting insight into the strategies, procedures and practices adopted by these bodies when resolving disputes and how they define the concepts of equality, justice and autonomy when resolving matrimonial disputes.
The Shariah Councils, in this study, reported marriage breakdown and divorce to be the two key issues which they dealt. In relation to divorce, female applicants contact a Shariah Council where husbands may refuse to grant them a unilateral divorce (talaq). Under Muslim law women are permitted a divorce without the consent of their husbands but this must involve the intervention of a religious scholar to determine which kind of divorce can be issued. A divorce can be obtained in a number of different ways: talaq (unilateral repudiation by the husband); khul (divorce at the instance of the wife with her husband's agreement, and on condition that she will forego her right to the dower or mehr) and ubara'at (divorce by mutual consent). There is of course much diversity within three major categories of divorce.

    1. A Common Approach to Dispute Resolution

Perhaps it should not be surprising that given the objectives of a Shariah Council data reveals that they adopt strikingly similar approaches to resolving matrimonial disputes. From a conceptual standpoint, we see an administrative process that focuses on collecting evidence to determine the grounds for divorce coupled with attempts to reconcile the parties. Yet rather than embodying a singular set of shared cultural and religious norms the Shariah Councils in this study were imbued with different interpretations of Islamic legal principles and differing power relations revealing internal contestation, conflict and change among and between them. In this context legal discourse reconfigures itself as ‘different levels of legality’ (Santos 1987, p 113). The disputants’ participation also raises our attention to the paradox of the new ‘interdisciplinary dialogues around questions of state power, cultural domination, resistance and hybridity’ (Greenhouse and Greenwood 1998, p 8).
In this study, the scholars described themselves variously as a ‘Registrar’, ‘Imam’, ‘Sheikh’, ‘Maulana’ or ‘Qadi’. Each term can be translated into ‘religious scholar’ and the variation in usage depends upon what the scholars felt comfortable with and, also their general reluctance to associate the councils as on par with official courts. Thus the term ‘religious judge’ was not used by any of the religious scholars as it was deemed likely to confuse clients as to the legality of their verdicts under English law. In fact the scholars were all keen to underline the fact that their verdicts were not legally binding under English law but served to uphold 'the moral authority of the Muslim community’. The religious scholar plays a critical role in the nature of the advice given.
I was allowed to observe initial meetings, counselling sessions and Shariah Council proceedings in action.

      1. Stage One: The Initial Contact

In this study, all the religious scholars were keen to emphasise that Muslim women are neither coerced nor obliged to contact Shariah Councils to obtain a Muslim divorce. Instead it was emphasised that the onus rests upon the individual to contact a Shariah Council for help and assistance-if required. Described as ‘community organisations’ that ‘act in good faith’ while providing a service with ‘minimal charge and no financial gain’ (Sheikh Abdullah, Shariah Court of the UK [SCUK]).
The religious scholars nevertheless emphasized the importance of these bodies in resolving marital disputes within the sphere of family and local Muslim community thus preserving the unity of the Muslim Umma. Mohammed Raza, at the Muslim Law Sharia Council (MLSC) explained: ‘We act in the best interests of Muslim women…they come to us for advice and with guidance from Allah we help them as best we can.’ Most strikingly, this space of dispute resolution is conceptualised as ‘the duty upon Muslims to abide by the requirements of the Shariah’ (Badawi 1996, p 12) in which Muslims are expected to utilise community frameworks. Indeed it is the interpretation of this term ‘duty’ that transforms this process of dispute resolution for diasporic Muslims in Britain. For Sheikh Abdullah, this duty becomes a greater ‘moral obligation’ for Muslims living in the West:
‘As Muslims, we have a duty to live according to the Qu’ran and Sunnah even though we may have chosen to live in non-Muslim countries. I think it is incumbent upon us to live up to this responsibility because of the effect of western influences upon our children and ourselves. It is easy to neglect our duties in this secular environment.’
With the perceived weakening of the Muslim community under threat from secular values, the scholars were keen to identify Shariah Councils as a key to strengthening a sense of belonging for Muslims within local communities and as part of belonging to the wider Muslim umma.
As discussed earlier, divorce under the Shariah is available to women, yet this is neither the guaranteed nor the inexorable outcome. Once the application for divorce is completed the process of investigation begins and it is this which determines whether a divorce certificate can be issued and if so, the type of divorce certificate to be issued. The process begins with a set of documents sent to the applicant outlining the procedures involved in obtaining a divorce certificate. This may include information on a registration fee; a form requesting the agreement of the applicant to abide by any decision; a letter of acknowledgement of the application and finally, a request for certain basic information about the dispute.20 The Birmingham Sharia Council (BSC) and Islamic Sharia Council (ISC) adopt a similar set of procedures with variations on the fee charged to cover the administration costs.21 The issue of cost creates some consternation with applicants. But in the words of Dr. Saeeda: ‘we have no choice but to make a small charge. We work as volunteers and in order for the service to operate effectively we must ensure that our administrative costs are covered.’ In contrast the SCUK are critical of any financial charge being made as Sheikh Abdullah explained, ‘…it’s haraam to make money out of other people’s misfortunes. If I’m in a position to help my fellow Muslim brothers and sisters then it is my duty to do so.’ Although there does seem to be differences in approach here, it is largely left unchallenged and therefore seems insignificant to the investigation process.
Data analysis of the case files revealed that contact with the Shariah Councils had been made via telephone, through letter correspondence and via scheduled and unscheduled visits.22 All 4 Shariah Councils reported that in the majority of cases initial contact had been made by telephone. The point of contact is important as it reflects the first opportunity for the scholars to dissuade clients from pursuing a divorce. It also illustrates a difference in approach between the councils and this relates to whether the councils should meet with all clients in person. For example, in contrast to the other councils, the MLSC accepted cases via correspondence; with no face-to-face contact with the client. Mohammed Raza at MLSC explained: ‘We get cases from all over the country and we cannot realistically expect all our clients to visit us in London. This doesn’t mean that we hand out divorces to anyone who requests one. We make thorough checks and act in good faith’.
This approach however was heavily criticized by the other Shariah Councils who argued that the presence of the client at the Shariah Council was crucial for a successful outcome to the dispute. This was bore out by the statement of Maulana Abu Saeed at ISC: ‘…it baffles me, how can you try and reconcile two parties when you have never met them? No, for us it is important to meet with our clients, to reason with them and make sure they understand the consequences of their decisions.’ The MLSC approach also led to criticisms that it undermines the work of all Shariah Councils. Sheikh Abdullah explained: ‘I do recognise the MLSC make thorough checks as best they can but what we see happening is that if an applicant does not like our decision they go off to another Shariah Council and if, for example, their presence is not required this only makes it easier for them to do so.’
Conceding that choice is necessary to accommodate the needs of all Muslims, he nevertheless remained convinced that the MLSC approach undermines the work of other Shariah councils and in so doing challenges the validity of the Muslim divorce certificate issued by a Shariah Council.

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