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Friday, August 12, 2011

Gender Equality in Sharia Courts?

By Deborah Weiss

The treatment of women under Islamic Sharia law is inherently discriminatory against women. Alarmed by the suffering of Muslim women at the hands of Sharia Courts in Britain, Baroness Cox recently introduced legislation into parliament which would ensure gender equality in Britain’s Sharia Courts.

Pursuant to the Arbitration Act of 1996, litigating parties are permitted to forgo the British court system and have their cases heard in an arbitral tribunal if both parties agree on the tribunal, are willing to relinquish their rights to a judge and jury, and voluntarily consent to the arbitration. Sharia Courts have operated informally in Britain for quite some time. However, in 2007 Sheik Faiz-ul-Aqtab Siddiqi discovered a clause in the Arbitration Act which rightly made him realize Sharia Courts could be classified as arbitration tribunals. Subsequently, he began heading up the Muslim Arbitration Tribunal to oversee the Sharia Courts. Once classified as arbitration tribunals, the British government began enforcing Sharia judgments with the full force of law.

According to a report by the Civitas think tank in England, as of two years ago there were approximately 85 Sharia Courts operating in Britain. The Arbitration Act of 1996 permits tribunals to rule on financial and property issues. However, the report asserted that many of the Sharia Courts exceeded permissible jurisdictional boundaries by advising on matters of marriage, divorce, child custody and domestic violence. By law, family and criminal matters are not arbitrable. This illegal expansion of jurisdiction has been dubbed “jurisdiction creep.”

The arbitral rulings and advisory opinions issued by Sharia Courts mandate the disparate treatment of women. Under Sharia law, a woman’s testimony is worth half that of a man’s, she is awarded half the inheritance of her male counterparts, custody laws grossly shortshrift women, and property laws provide unequal rights based on gender.

In terms of mediation efforts, Sharia Courts often merely hand the parties pre-determined outcomes that comport with the laws of Sharia and request both parties to sign consent forms. Then, the forms are submitted to the Family Court on the false premise that the terms were truly negotiated by the parties involved.

To make matters worse, many Muslim marriages take place solely under religious ceremonies and are not registered with the state as required by the Marriage Act of 1949. Thus, these “marriages” are not civilly recognized and the “wives” are not afforded any legal protections. Interestingly, the problem of non-registration appears only in the Muslim community. Jews and Christians always register their marriages civilly even when the wedding ceremony is religious in nature.

Unfortunately, there are Muslim women who fled their homelands to escape the oppression of Sharia law, only to find they are facing a similar situation in the UK. Because many Muslim immigrants are illiterate, the women are unaware of their rights under British law. It is legal to consent to arbitration if the acquiescence is voluntary. However, often in Muslim communities women are threatened, intimidated or otherwise coerced into submitting to Sharia Courts. Thus, it is not truly voluntary.

Baroness Cox finds the injustice to Muslim women and the discriminatory judgments being handed down by Sharia Courts to be disconcerting. In addition, many British judges have begun questioning whether Sharia rulings comply with the UK’s obligations to ensure gender equality under the Human Rights Act.

Accordingly, Baroness Cox’s bill, titled “The Arbitration and Mediation Services (Equality) Bill,” if passed into law, makes it clear that sex discrimination laws apply to arbitration tribunals as well as civil courts. It would prohibit unequal treatment of testimony, uneven-handedness of property, inheritance distribution, and financial rulings. It would also make it a crime punishable by up to five years in jail to falsely assert jurisdiction over family and criminal matters. Finally, the bill mandates that in unregistered marriages, public authorities must inform the parties that they are required to register their marriages in order to secure legal rights.

In other words, the bill requires Sharia Courts to acknowledge the priority of British law over Sharia law when the two conflict, and to preserve the British values of human rights and equality for women.

The bill does not mention Islam or Sharia by name. However, both the Baroness’ comments, as well as the Explanatory Note attached to the bill, make it clear that the legislation was prompted by concerns of the inequality executed in Sharia Courts and the fact that Sharia Courts have regularly, gradually, and illegally expanded their jurisdiction.

Various secular, Christian and Iranian-Kurdish women’s rights groups support the Baroness’ bill.

It comes on the foot-heels of the Home Secretary’s admission that Britain’s anti-terrorism program failed to recognize the extent of radical Islamist ideology and its influence in Britain, and an acknowledgment of Britain’s continuing problems of lack of integration and assimilation by the Islamic community. It is therefore no surprise that some Muslims are complaining about this legislation.

Turning a blind eye to the lack of consent, their ignorance of the law, the cries of suffering women, and the failure of Sharia Courts to inform Muslim women of their rights, Khurshid Drabu, constitutional adviser to the Muslim Council of Britain argued, “[B]ills of this kind don’t help anybody.” He accused lawmakers of failing to understand the “freedom” that Britain ensures whereby Muslim women should be permitted to submit to Sharia rulings.

_____________________________________________________________________________________ Deborah Weiss is an attorney, freelance writer and public speaker. She works for and is a regular contributor to FrontPage Magazine and the American Security Council Foundation.

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