Not Saussure

December 2, 2006

Sharia law and community courts: Joshua Rozenberg misdirects himself

Filed under: Community, Law, UK — notsaussure @ 10:44 am

Normally I have the greatest respect for the Telegraph’s legal editor, Joshua Rozenberg; since he’s a barrister, he’s one of the few Fleet Street reporters on legal affairs who knows what he’s talking about. He also, of course, deserves the Patience of Job award for putting up with his barmy wife Melanie Phillips for more than 30 years.

However, his report earlier this week, Sharia law is spreading as authority wanes, is more worthy of Mad Mel than of Mr Rozenberg; what’s all the stranger is that all he needed to do was accurately to report on a BBC radio programme, Law in Action. The most recent edition (a recording of which is still up on their website for the next few days and which is summarised in an article on the BBC website, rather dramatically called The end of one law for all?) looked at ‘Legal Pluralism in Britain’, with particular reference to the long-established Jewish court, the London Beth Din, and the more recent Muslim sharia councils, both of which deal with very similar civil arbitration between parties who voluntarily agree to submit their dispute to these courts rather than use the civil law, and matrimonial disputes for people who feel the need for a religious as well as a civil dissolution of their marriage.

The programme also, though discovered an alternative community court that has ventured into the criminal law. Joshua Rozenberg reported it thus in Wednesday’s Telegraph:

Islamic sharia law is gaining an increasing foothold in parts of Britain, a report claims.

Sharia, derived from several sources including the Koran, is applied to varying degrees in predominantly Muslim countries but it has no binding status in Britain.

However, the BBC Radio 4 programme Law in Action produced evidence yesterday that it was being used by some Muslims as an alternative to English criminal law. Aydarus Yusuf, 29, a youth worker from Somalia, recalled a stabbing case that was decided by an unofficial Somali “court” sitting in Woolwich, south-east London.

Errm, not what Mr Yusuf said, though. As the BBC article accurately summarises it ( and his meaning is even clearer if you listen to him in the recording),

Aydarus Yusuf has lived in the UK for the past 15 years, but he feels more bound by the traditional law of his country of birth – Somalia – than he does by the law of England and Wales.

“Us Somalis, wherever we are in the world, we have our own law. It’s not Islamic, it’s not religious – it’s just a cultural thing.”

The 29-year-old youth worker wants to ensure that other members of his community remain subject to the law of their ancestors too – he helps convene an unofficial Somali court, or “gar”, in south-east London.

Aydarus Yusuf has lived in the UK for the past 15 years, but he feels more bound by the traditional law of his country of birth – Somalia – than he does by the law of England and Wales.

“Us Somalis, wherever we are in the world, we have our own law. It’s not Islamic, it’s not religious – it’s just a cultural thing.”

The 29-year-old youth worker wants to ensure that other members of his community remain subject to the law of their ancestors too – he helps convene an unofficial Somali court, or “gar”, in south-east London.

The BBC article continues,

One of the most serious cases it has dealt with was the “trial” of a group of young men accused of stabbing a fellow Somali.

“When the suspects were released on bail by the police, we got the witnesses and families together for a hearing,” says Aydarus. “The accused men admitted their guilt and apologised. Their fathers and uncles agreed compensation.”

He went to explain in the broadcast that, of course, they’d have left the matter to the police had it been a serious stabbing — they’d have had to, of course. However, as Joshua Rozenberg accurately summarises it,

A hearing was convened and elders ordered the assailants to compensate their victim. “All their uncles and their fathers were there,” said Mr Yusuf. “So they all put something towards that and apologised for the wrongdoing.”

Although Scotland Yard had no information about that case yesterday, a spokesman said it was common for the police not to proceed with assault cases if the victims decided not to press charges.

However, the spokesman said cases of domestic violence, including rape, might go to trial regardless of the victim’s wishes.

And Mr Yusuf was also adamant that if the informal community sanctions and peer pressure didn’t work to prevent re-offending, they’d leave it up to the police and the criminal courts next time. Joshua Rosenberg got it almost right; he reckons that,

Sharia’s great strength was the effectiveness of its penalties, he [Mr Yusuf] said. Those who appeared before religious courts would avoid re-offending so as not to bring shame on their families.

No, he didn’t say anything of the sort. He said the great strength of these traditional gars was the effectiveness of their penalties. The BBC, in fact, were moved to issue a statement correcting the Telegraph’s coverage:

There seems to be some confusion about what Tuesday’s edition of Law in Action did and did not reveal about the existence of sharia (Islamic law) courts in Britain.

We would like to clarify a few points for those who have not had a chance to listen to the programme in its entirety.

We have not discovered the existence of sharia courts dispensing criminal justice in Britain. The only alternative criminal court which we know of uses Somali customary law.

Those who use the court are Muslim but the court does not apply sharia law.

The court seeks to reconcile victims and perpetrators by asking those found guilty to pay a sum of money to the complainant.

The court does not apply punishments such stoning, amputation and beheading.

The main activities of the sharia councils we have spoken to are the giving of religious advice and the dissolution of Muslim marriages in cases where the husband does not agree to the divorce.

One sharia council we spoke to, the Mahkamah Council of Jurists, also settles civil law disputes on matters such as contract and negligence.

Its decisions are recognised as enforceable in English law as long as they are reasonable.

I have very mixed feelings about all this. Certainly, there’s nothing exceptionable about people voluntarily agreeing to submit their civil disputes to arbitration rather than the civil courts, so long, of course, as the decisions are subject to civil judicial review if they’re inequitable or against public policy; indeed, it’s encouraged since it’s generally far quicker, cheaper and more amicable than using the civil law.

Such courts dealing with matrimonial law is, at least as far as I’m concerned, unproblematic most of the time, since they’re dealing not with the question of whether a couple are married in the eyes of the law but whether they’re married in the eyes of the religion in question rather than the eyes of the state. I don’t see who else you can ask whether a marriage is valid or not in the eyes of the religious authorities of a particular faith, or whether it should be dissolved or annulled, other than those religious authorities themselves. It’s a completely separate question from the civil status of a marriage.

As to any divorce settlement, I think the same arguments apply as would in any other civil matter; it’s always considered preferable for the divorced couple to reach a mutually agreed financial settlement than to fight it out in the courts, and if a particular couple are happy to have their religious courts help them agree a settlement then that’s all to the good. I can see that it needs to be subject to a civil appeal if the settlement is grossly inequitable; I’m conscious, too, of the problem that someone might feel herself forced into accepting a particular settlement by social pressure (which is one reason why the civil courts have to be able to become involved if necessary) but I’m not sure what you do about that — the pressure will be there anyway. If the mores of a particular community, as expressed by the views of your family and friends on the matter, say that a divorce settlement should be handled in a particular way, then that’s what they say. If the views of your family and friends matter to you, then the pressure will be there come what may.

I’m less convinced, though, when it comes to child custody matters, since children have rights and interests too, and the civil courts’ over-riding duty is to protect those. Certainly, one would think it will normally be in the children’s best interests if their divorcing parents can reach a mutually acceptable agreement about custody, access and maintenance, and if they’re helped to this by a religious court, then good for the religious court. However, I think the agreement — however reached — should always be ratified by the civil courts since they have to satisfy themselves that the children’s best interests are protected, whatever the parents think of their agreement.

As to these community courts involving themselves in criminal matters, I think that’s a very complicated area. As the police identified in the Telegraph extract, and as Gracchi argue in Westminster Wisdom, this raises concerns, addressed by the police when they volunteered the comment about the BBC programme that ‘cases of domestic violence, including rape, might go to trial regardless of the victim’s wishes,’ about

cultural prejudice and bias against various kinds of crime- rape, sexual assault and domestic abuse being the ones that instantly spring to my mind. Community leadership by old men seems always to end up in the destruction of the rights of young women.

On the other hand, as noted by the panel discussing the particular intervention by the Somalian gar — the fight and stabbing — the matter seems to have been resolved at least as satisfactorily as it would have been by prosecuting the matter in the criminal courts, as a comparatively minor assault, without the injured party’s cooperation. And, as occurred to me when I listened to the programme and to one of the panelists in the programme, with what sounded like general agreement, non-judicial sanctions are nothing new. I don’t know what happens in state schools nowadays but at my independent school some decades ago, what were certainly criminal matters like minor assaults and harassment were certainly dealt with within the school’s disciplinary procedures rather than by the criminal courts. No one seemed to think it particularly odd, and I’d certainly consider the head teacher nowadays pretty heavy handed who automatically dealt with two 16-year-olds fighting in the playground by calling in the police.

The test, I think, has to be the pragmatic one of what’s in the public interest. Certainly, the more serious the offence, the greater the public interest in having the matter prosecuted in the criminal courts. However, against this you need to set the problems of prosecuting without the injured party’s cooperation and the fact that, at least apparently, the social pressure exerted by these informal community courts do in some cases seem to address the problem of reoffending at least as effectively as the criminal justice system; that, it seems to me, is also a public interest argument.

Gracci give the warning that

The other worrying aspect of this is the way that an immigrant community turns in on itself- as I’ve indicated above this has historically been fairly universal, the Jews in the East End of London for example were in their time a definite separate community- but we should not necessarily assume that the evolution that took Jews in England and Irish in America from the margins to the centre of society will happen again with the Somalians. We shouldn’t assume it won’t but we shouldn’t assume it will- and part of our task has to be to open possibilities to Somalian youths to take up the rights promised them by the law, evade the power of the community leaders and break the walls of the ghetto down.

I take the point, but it can surely equally well be argued that the journey of any group of youths ‘from the margins to the centre of society’ is assisted, at least in part, by a process that keeps them out of the remit of the criminal justice system, since the adverse effects of acquiring a criminal record in your late teens — when most people are pretty stupid — stay with you a very long time. It certainly seems perfectly plausible that involving these youths’ extended families and community pressure will have worked quite well as a disincentive to re-offending than ASBOs, apparently seen as badges of honour by many of their recipients.

Such community courts certainly seem, at least potentially, no less effective than their namesakes, recently enthusiastically endorsed by the Lord Chancellor to The Magistrate’s understandable displeasure.

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