Top British Judge Backs Shari`ah

"There is no reason why principles of Shari`ah law, or any other religious code, should not be the basis for mediation or other forms of alternative dispute resolution," Phillips said. (Google photo)

"There is no reason why principles of Shari`ah law, or any other religious code, should not be the basis for mediation or other forms of alternative dispute resolution," Lord Chief Justice Lord Nicholas Phillips said in a speech to the London Islamic Council.

"It must be recognized however that any sanctions for a failure to comply with the agreed terms of the mediation would be drawn from the laws of England and Wales."

Phillips, the most senior judge in England and Wales, said parties to a dispute are free to agree to accept Shari`ah principles or other religious precepts if they decide to seek mediation.

"So far as the law is concerned, those who live in this country are governed by English and Welsh law and subject to the jurisdiction of English and Welsh courts."

Under British law, people may devise their own way to settle a dispute in front of an agreed third party, such as Shari`ah courts and the Jewish Beth Din, as long as both sides agree to the process.

The rulings of Shari`ah courts, however, are not recognized by the law and thus Muslims, estimated at nearly 2 million, would have to seek settling their disputes through civil courts.

Misunderstood

The Lord Chief Justice said that the Islamic Shari`ah has been widely misunderstood.

"Part of the misconception about Shari`ah law is the belief that Shari`ah is only about mandating sanctions such as flogging, stoning, the cutting off of hands or death for those fail to comply with the law.

"In some countries the courts interpret Shari`ah law as calling for severe physical punishment. There can be no question of such courts sitting in this country, or such sanctions being applied here."

Archbishop of Canterbury Rowan Williams recently recommended that British law should recognize some aspects of Shari`ah to resolve Muslim civil matters.

His remarks ignited an extraordinary political and religious storm that still rages on, with politicians united in denouncing the proposal.

Leading newspapers and tabloids launched vitriolic campaigns against the spiritual leader of the world's Anglicans, some even calling for his resignation.

The Lord Chief Justice defended Williams' Shari`ah law comments.

"It was not very radical to advocate embracing Shari`ah law in the context of family disputes, for example, and our system already goes a long way towards accommodating the archbishop's suggestion.

"It is possible in this country for those who are entering into a contractual agreement to agree that the agreement shall be governed by a law other than English law."

"So a Muslim woman who divorced according to Shari`ah principles would be free to marry again, but not if she only went to a civil court.

"But as far as aspects of matrimonial law are concerned, there is a limited precedent for English law to recognize aspects of religious laws, although when it comes to divorce this can only be effected in accordance with the civil law of this country."

The Lord Chief Justice's comments drew applause from Muslim leaders.

"[Phillips] is talking about provisions that are already out there for mediation and conflict resolution," said Usama Hasan, imam at Al-Tawhid Mosque, Leyton, and an adviser to the Islamic Shari`ah Council.

"Muslim couples would prefer to have their personal disputes to be settled by a Shari`ah scholar because such a ruling would affect their status.

"Aspects of Jewish divorce law have long been part of English law and it seems reasonable for Muslims to have the same treatment, but it can't lead to inequality or a splintering of British society."