CAIRO — Britain's most senior
judge has suggested that Islamic Shari`ah could play a role in the
British legal system, echoing a similar stance by the Archbishop of
Canterbury Rowan Williams, reported the Guardian on Friday, July 4.
"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."
