Secularism and sharia law

Sharia Law in Europe
(This paper does not address halal slaughter and meat, or Sharia finance.)  

Background
There were reported to be 16 million Muslims in the EU in 2007. EU countries with the highest proportion of Muslims are Bulgaria (11.87%), France (10%) and the Netherlands (5.4%)[1].  

Definition and main characteristics
Sharia literally means “the way” and is deemed to be immutable, sacred law, based on 7^th century texts. Unlike secular jurisprudence that distinguishes between criminal and civil law, the texts regulate the widest spectrum of Muslim conduct; including crime, politics and economics, as well as personal matters such as marriage, sexual conduct and dress. They also cover areas where Western law would barely intrude, if at all: diet, fasting and prayer.
It is thought that there is no practice of sharia in the EU in areas subject to criminal law. This is probably because its draconian nature and penalties (e.g. stoning to death) are unacceptable in a modern Western society, rather than some reason in principle why it should not be applied. Indeed, calls for amputation etc. have been made, albeit not in the mainstream.[2]
There is a wide variety of outcomes possible under sharia for the same transgression, given there are several different schools of sharia law, which in any case is not codified. Furthermore, modernists, traditionalists and fundamentalists hold different views of sharia, which is also practised differently in different countries and cultures. It is therefore a long way from The principle of “one law for all”, particularly in the way women are treated less favourably than men, and is not influenced in any way by modern concept of Human Rights[3].  

The Issues
Democratically-determined and human rights compliant national and community law should always override sharia (or any other religious) “law”. Yet this seemingly cardinal principle is under increasing threat in the following ways:  

a) Women, especially, are corralled into sharia courts or councils in the UK, in particular where they frequently receive less fair treatment than in the civil equivalents. In a judgment, the UK House of Lords found sharia to be “arbitrary and discriminatory”. [4] More details are given below of adverse effects on women.
b) Courts are starting to allow what they consider religious and cultural norms to influence decisions. This appears to be a particular problem in Germany.[5] Higher courts have tended to reverse such decisions, as they also did in 2010 in New Jersey[6]. We have unsubstantiated reports of similar problems on a smaller scale in Norway, Sweden and Denmark.
c) In the UK, arbitration law is used or exploited to give sharia almost full legal status. There are fears that the Muslim arbitration tribunals operating under this law exceed their authority (they should not deal with family or criminal matters) and civil courts enforcing sharia arbitration decisions tend not look adequately behind the decisions to check their legitimacy.    

If a state allows religious groups freedom to decide on family issues, such as child custody, in the manner of a court, they may override the human rights of individuals concerned. The use of sharia law in family proceedings would deprive women of rights they have in civil courts. It is strongly suspected that women have frequently not freely given informed consent to Sharia proceedings.
Sharia councils give religious rulings (fatwas) on all aspects of Islamic law, including religious divorces. Many women believe that they are divorced (or not divorced) according to the councils’ decisions, unaware of their legal rights. A UK campaign has gathered evidence suggesting that women are being forced to sign away their family law rights in order to obtain a religious divorce. Any such agreement would not be legally binding. However, women are unlikely to challenge the agreement in a court[7].
Sharia councils frequently ask people to sign an agreement to abide by their decisions, in essence depriving them of their rights under civil law. Some sharia councils call themselves courts and the presiding imams are judges. There is neither control over the appointment of these judges nor an independent monitoring mechanism. People often do not have access to legal advice and representation. Proceedings are not recorded, reasons for decisions are not given, nor are there any searchable legal judgements or any real right to appeal.  

Examples of women’s rights being ignored:
Domestic violence. In one study, four out of ten women attending sharia courts were party to civil injunctions against their husbands[8].
The evidence of women. before the religious court is worth half that of a man.
Unequal division of estates. between male and female children.
Custody of children. One of the commonly used doctrines removes boys from their mother and gives them to their father at the age of 7 in the event of divorce. Girls are removed at puberty. In some cases the mother loses residence in the event of remarriage.
Maintenance. The Nikah or marriage contract contains pre-set rules for the amount of payment on divorce. This does not reflect individual requirements or circumstances.  

The current situation in Europe More…
  

Conclusion and possible ways forward
Despite problems such as those we have set out, opinion formers in legal, religious and academic circles seem intent on promoting the growth of sharia, and on belittling the dangers to the vulnerable and of sharia’s expansion into criminal law. We remain disturbed at the number of establishment figures that seem content to promote Sharia as an alternative to democratically-determined and human rights compliant national and community law. Their motives are not clear: is it ignorance?; do they believe supporting sharia is supporting an oppressed minority, is it an attempt to chase votes or some other, perhaps misplaced, motives?
This is an area which demands urgent and thorough study as there is currently much secrecy; it is impossible to know how many hidden sharia courts and tribunals are being held. The first steps should include:  

a) Studies to establish the extent of sharia courts and tribunals and examine the way they operate.
b) An information campaign is needed to reach out to women and inform them of their (secular) legal rights, especially in family and inheritance law matters – in conjunction with legislative reform).  

We accept that a balance needs to be struck between religious freedoms and the Human Rights of those subjected to sharia. The Canadian province of Ontario, was faced with such a problem and has now outlawed all religious courts[20].
We believe this issue urgently needs examination by EU and Council of Europe institutions in the context of Fundamental Rights and Human Rights.  

Council of Europe and European Court of Human Rights, and further reading
Particularly relevant is:
- the Council of Europe Resolution 1464[21] Women and religion in Europe, which is associated with a report [22]
- the 2003 ECtHR judgment Refah Partisi v. Turkey [23] (Para 15 of the judgment of which reads: “The Court concurs in the Chamber’s view that sharia is incompatible with the fundamental principles of democracy, as set forth in the Convention” and quoted approvingly para 72 of the Chamber’s judgment, part of which read “It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts.”
- Sharia Law in Britain – A Threat to One Law for All and Equal Rights by One Law for All [24]
- Booklet A New Inquisition: religious persecution in Britain today by Civitas[25].
- Shariah in Great Britain? Feature by Spiegel online[26]