Do Muslims seek to establish Shariah courts in Western countries?
One of the famous claims of some people in the west is that Muslims are apt to establish Shariah courts in Western countries. This claim needs to be carefully analyzed because the issue of establishing religious tribunals to settle issues which cause civil dispute such as marriage, divorce and inheritance were a reality for sometime in the West and more importantly it was proved to be successful in the West.
Doug Saunders in his book “The Myth of the Muslim Tide” narrates that in the 1980s and 90’s some Western governments moved to promote the use of alternative dispute resolution which is a system in which citizens contesting contracts, divorces and other torts are encouraged to settle their differences among themselves with the help of an independent mediator from the community, rather than embarking on a costly civil trial or a lawsuit. This approach proved helpful to governments in order to reduce the case load in civil courts and the soaring public cost of the justice system. For potential litigants or couple seeking a divorce, an inheritance decision or a child-custody settlement, the religious tribunals often provided a resolution without the hostility, complexity and cost of a court case. This new approach led religious leaders who have been ruling on such matters for centuries and who often prize their own scriptural laws above those of civil society, began seeking a place in this system.
In the early 1990s, Jewish and Catholic tribunals were created in Britain, Canada and the United States without catching the interest of the general public, though some legal observers expressed concern due to the fact that these religious tribunals were giving official legitimacy to spiritual decision that clashed with the value of a secular society. Fore example, the Jewish tribunal, known within the faith as Beth Din, recognize a form of religious divorce known as a get in which the husband gives a wife a document written in Aramaic and ancient Hebrew declaring the end of their marriage. It was only natural that Muslims wanted to have their own religious tribunals as well in which they can settle their own civil disputes through arbitration services. The first attempt of Muslims was in Canada in the state of Ontario in which the province’s Arbitration Act of 1991 authorized family- based tribunals run by Jewish and Catholic religious authorities to settle issues of divorce, inheritance or custody as long as they did not conflict with Canadian laws, the Muslims simply wanted to extend this Act to include their faith and proposed an Islamic institute of Civil Justice to perform arbitrations. The province faced loud protests by conservatives, Christian activists and secular Muslims as a result it asked the former attorney-general Marion Boyd to investigate. Her result came out in 2004 report in which she suggested the necessity of authorizing Muslim tribunals because it might be unconstitutional to allow only Christians and Jews to have such tribunals.
After a year of a heated debate, Ontario premier Dalton McGuinty announced in September 2005 that there will be no shariah law in Canada and took his decision even further by drawing a strict line between religion and state through stripping all faith-based arbitrations of their legal authority, ending the 14-year experiment in state-recognized religious law. Such response led the Catholic and Jewish organizations to join forces with Muslims to restore faith-based arbitration but the Canadian governments had a little appetite for a return.
In Britain, the situation is different as it continues to allow Islamic dispute-settlement tribunals known as Shariah councils. The tribunal system started in 1980s organized by Deobandi conservative Muslims and was recognized by the UK government in 1996 when the Arbitration Act allowed Christian, Jewish and Muslim tribunals to make rulings on civil matters if both parties have voluntarily agreed to the arbitration, then their rulings are considered legally binding. In 2007, another more liberal Barelvi Muslims established a competing body, the Muslim Arbitration Tribunals. Some Muslims believe that such tribunals solved the problem of immigrant women who had earlier married a Pakistani man under Pakistan’s shaira-based laws: a British divorce does not provide them with the religious certificate that allows them to marry again. These religious divorces account for the majority of the tribunals’ activity. These religious tribunals attracted several protests from civil libertarians who worry about giving official recognition to discriminatory practices.
In the United States, this type of Islamic tribunals existed within US mosques and Muslim communities for decades and is seen as a legitimate form of conflict mediation and therefore binding under the Federal Arbitration Act of 1925 which does not specifically mention religious tribunals. The paradox in legitimizing religious tribunals in the US is that the First Amendment under which there is a strict separation between church and state means that the US courts cannot review, consider, or hear appeals of decisions arising from religious tribunals. A study in the Columbia Law Review concluded that “religious issues permeate the entirety of religious tribunal proceedings,” so that the recognition of any of their decisions as legally binding would likely to cause a conflict with the First Amendment.
This means that the issue of “shariah courts” is not about Muslims trying to impose their religious laws on their host countries because the serious question has to do with whether religious believers of any faith should be allowed to make decisions based on their beliefs rather than on the laws of their country. On the other hand the huge havoc and the loud cacophony surrounding the issue of Islamic tribunals might draw the attention of the general public to more pressing phenomenon which is the incursion of religion into public life, resulting in a wider move towards secularization. This certainly was the case in Ontario and similar thing happened in France where political outcry over Islam led France to ban from school classrooms not only the Muslim headscarf but also the Jewish yarmulke and the Christian cross.
Some believe that the banishing of all sorts of religious tribunals altogether will lead them to be actively functioning underground and thes issues posed a problem to countries with constitutionally protected state secularism including Turkey, France and the United States. Some suggested that the best approach is through embedding the religious power within the fold of the legal system. This approach was adopted by Turkey which decided to hire all the 60,000 Turkish imams as government employees, paid and regulated by the Ministry of Religious Affairs. Turks argue that this approach was fruitful and prevented the rise of extremism in the Turkish society.
Some Western governments have begun to adopt this approach to counteract the fundamentalist religious movements. Belgium for example started to pay the salaries of some imams and other countries including France and Germany have set up publicly funded training and certification courses for imams in university religious studies departments and divinity schools. These policies would result in replacing foreign-salaried extremist religious leaders with a generation of culturally integrated, linguistically fluent imams who advance the cause of moderation and modernity in the mosques of Europe. The only potential threat of such policies is that they might provoke a backlash that would put an end to all government involvement in religion, Ontario-style, and advance the cause of secularism.