Sharia courts

1 July 2009

An article in the Guardian caught my eye today (the second like above), and the following are my immediate, unworked thoughts.

There is nothing wrong with people who choose mediation or even arbitration including sharia courts to settle civil disputes. But (and as is always the case with such statement there is a big but), such mediation / arbitration must be entered freely, out of volition by both parties, fully aware of the rights they possess, and there must be recourse to other courts. There ought to be no social, communal, or religious pressures exerted on the parties to choose arbitration over the legal courts of the realm.

Also as a fundamental principle, any mediation or arbitration should conform to the laws of the land, due process, and fairness. If sharia courts, as it is said, discriminate on the grounds of gender and treat women worse than men for instance, then they are not following the laws of the land, due process, or fairness. There will be, as with any community, pressure to sort the problem within the community, among themselves, and it is difficult to say how autonomous and voluntary would the decision to refer a case to sharia court be.

This kind of debate always puts me in a quandary. I believe that people should be able to decide on as many matters as possible as they see fit. I believe in personal autonomy, and as much as possible without harming others. Yet, I understand that there are unseen pressure, and expectation, from kith and kin. Such pressure robs many of their ability to do as they would do unfettered, and consequently diminishes their autonomy. In such cases, what ought to be the role of the law and society? Is it their task to protect those who have been deprived their room for manoeuvre? And if that means banning sharia courts, should that be pursued?

There will always be customary and quasi-judicial tribunals or informal gatherings that decide on the mores of people, and exert non- and para-legal pressure. So ‘banning’ sharia courts will not solve the problem, because banning or non-recognition does not mean they cease to exist. If these courts were (allowed) to exist, whether formally constituted under existing legislation or informally, there must be a proper avenue of recourse available for those who take matters to sharia courts or those who were taken thither by the other party. Even with such policy in place, there is always the danger of someone accepting willingly a court’s decision that seem repulsive to outsiders. Now, that will be difficult to resolve: again, my belief in autonomy is pitted against unreason.

Whatever one’s position on this issue, there is an urgent need for proper debate about courts and alternative dispute resolution mechanisms. The debate is not narrowly about sharia courts, but it is about human autonomy and human rights. What values does the society believe are necessary for justice and fairness.

The debate on sharia is not limited to Britain. For example, there were fierce discussions in Ontario, Canada, a few years ago. And in the Netherlands, a Socialist MP, Ms Sadet Karabulut, has called for the end of sharia courts in the Netherlands, since they are contrary to the Dutch legal system which treats men and women equally. The ministers for integration and justice will be answering questions in the Dutch parliament on Thursday.