Shari'ah: A Case for Legal Pluralism

By M. Haris Z Deen

Muslims form one-fifth of the world population, yet people know very little about Muslims, their culture, religion, and history. This is not a textbook on Islamic lawthe Shariahbut it analyzes the Shariah in its correct perspective as a way of life that a Muslim is required to follow in order to gain the pleasure of God, seeking His rewards and avoiding the punishments, thus introducing to those non-Muslims the correct understanding of the Shariah.

After 9/11 and 7/7, Shariah, in any form, has become very suspicious, and a new word, Islamophobia, has entered the English lexicon. Against this background, this book examines the concept of Islamic law that can be safely accommodated within the British legal system. A strong case has been made for legal pluralism that can be introduced without affecting human rights, and a robust case has been made for allowing Muslim matrimonial and family matters to be settled using the British Arbitration Act of 1996

• Language: English
• Publisher: AuthorHouse UK
• Release date: Aug 27, 2015
• ISBN: 9781504989855

M. Haris Z Deen

M. Haris Z Deen is a recognized writer among Islamic circles. He holds a doctorate in cost engineering from the State of Montana, USA, and an MBA from the State of Hawaii. He is also a graduate in engineering and an alumni of the University of East London from where he holds a degree in law. Being a fellow of the Royal Institution of Chartered Surveyors, he regularly lectures in contract law in CPD seminars. He is recognized as an exponent of Shari’ah law and is also a regular contributor to Sri Lankan tabloids and broadsheet newspapers.

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SHARI’AH

A CASE FOR LEGAL PLURALISM

M. HARIS Z DEEN

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© 2015 M. Haris Z Deen. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse 08/26/2015

ISBN: 978-1-5049-8986-2 (sc)

ISBN: 978-1-5049-8985-5 (e)

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Scripture quotations marked KJV are from the Holy Bible, King James Version (Authorized Version). First published in 1611. Quoted from the KJV Classic Reference Bible, Copyright © 1983 by The Zondervan Corporation.

Contents

Dedication

Acknowledgements

Table of cases

Table of Statutes

Preface

1 Introduction

2 Origin and Sources of Shari’ah

3 The Correct Perspective of Shari’ah

4 Defence against media propaganda

5 The Growth of the Muslim Population in Britain

6 Legal Issues of Conflict Between the Shari’ah and British Law –

A. Categories of Hudud offences

(a) Zina (Fornication/Adultery)

(b) Qadhf (Wrongful Accusation of Zina)

(c) Shurb al-khamr or Saqr (Drinking Intoxicants)

(d) Sariqa (Theft)

B. Civil Law Categories

(a) Contract

(b) Sales (buyu)

(c) Partnerships (sharikat)

(d) Hire and Lease (ijara)

(e) Guaranty, Suretyship (Kafala)

(f) Transfer (hawala)

(g) Agency, procuration (wakala)

(h) Deposit (wadia)

(i) Loans (ariya, qard)

(j) Pledge, security (rahn)

(k) Gift (hiba)

(l) Acknowledgement, confession (iqrar)

(m) Amicable settlement (sulh)

C. Family Law and Succession

(a) Marriage

(b) Divorce

(c) Child Custody and Family Maintenance

(d) Estates, Bequests and Succession

7 The Case for Legal Pluralism in Britain

A Missed Opportunity

The inequality of the evidential burden – that the evidences of women are worth half of that of men.

Direct and indirect discrimination against women:

Imposition of Hudud punishments:

Inequality in the division of inheritance:

8 The Character of Islamic Law Within a Plural Society

9 Conclusion

Glossary

Bibliography

Dedication

To my brother Marhoom Zainulabdeen Mohamed Saheed

Acknowledgements

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In the first place I thank Allah for having granted me the strength and the resources to complete this work.

I cannot forget the immense help that Sudanese lawyer Mohamed Awad El Geed provided in advising me on several aspects of the Shari’ah law and its applications and also translated some of the Arabic terms contained in reference documents. I extend my deepest gratitude to Awad El Geed.

My thanks to the Institute of Community Cohesion – United Kingdom for their ready agreement for me to use material from their surveys on the divergence of Muslim thought, from which I adapted all the figures contained in my work.

To Shireen Zaman, Executive Director of the Institute for Social Policy and Understanding (ISPU) 1225 Eye St, NW Suite 307 Washington, DC 20005 USA, I say a big thank you and acknowledge the immense joy that it gave me when the Institute granted me permission to quote from any of their works.

To the Guest Centre Qatar, I am grateful for providing access to works of Dr. Bilal Phillips and other Muslim authors on Islamic jurisprudence.

At last but not least, I extend my deepest gratitude to AuthorHouse UK – A Penguin Random House Company of 1163 Liberty Drive Bloomington, IN 47403 for undertaking the publishing and promoting this book.

Table of cases

A v T (Ancillary Relief: Cultural factors) [2004] 1 FLR 977 – 93, 103

Al-Bassam v Al-Bassam [2004] EWCA Civ. 857’ [2004] W.T.L.R 758 (CA (Civ. Div) – 97

Dubai Islamic Bank PJSC v PSI Energy Holding Co. BSC [2011] EWHC 2718 (Comm.) -92

Hirani v Hirani [1983] 4 FLR 232 - 93

Hyde v Hyde and Woodhouse (1866) LR 1 PD 130 – 94

Investment Dar Company KSCC v Blom Development (Rev 1) [2009] EWHC 3545 (Ch) - 87

Printing and Numerical Registering v Simpson (1875) LR 19 Eq 462 - 45

Qureshi v Qureshi [1972] Fam. 173, [1971] 2 WLR 518, [1971] 1 All ER 325, (1970) 114 SJ 908 - 100

R v Derriviers (1969) 53 CAR 57 – 93, 103

R v Turner (No.2) [1971] 1WLR 901 - 79

Re J (A child) (Custody Rights: Jurisdiction) [2011] EWCA Civ. 703 - 93

Secretary of State for Work and Pensions v M [2006] 1 FCR 497 - 74

Shefield CC v E and S [2004] EWHC 2808 (Fam) - 94

Standard Bank plc v Al Jabr [2011] EWHC 2816 (Comm.) - 92

S.W v C.W [1983] 4 FLR 232 - 93

Pakistani Cases

Allah Rakha and another v Federation of Pakistan and others PLD 2000 FSC 1 -105

Hafeez Abdul Waheed v Miss Asma Jehangir and another PLD 1997 Lahore 301 - 105

Mst. Humera Mehmood v The State and others PLD 1999 Lahore – 105

Sri Lanka cases

Burhan v Ismail S.C (CA) 177 Board of Quazis Colombo 1761 November 6 1978 – 18, 20

Deen v Rauff – Court of Appeal CALA 122/95 Board of Quazis No. E 23306 Quazi Court of Colombo South N3698/D April 3rd. and 4th. 1997 – 18, 20

Table of Statutes

Abortion Act 1967 - 106

Arbitration Act 1996 –44, 46, 49, 57

Civil Partnerships Act 2004 – 55

Consumer Protection Act 1987 - 84

Defamation Act 1886 - 76

Employment Equality (Religion or Belief) Regulation 2003 -104

European Convention on Human Rights - 15

Human Rights Act 1998 – ix, 58, 104, 112, 113

Matrimonial Causes Act 1973 – 73, 74, 95

Sale of Goods Act 1873, 1979 - 84

Sex Discrimination Act 1975 – 52, 106, 110

Sexual Offences Act 2003 – 74

Sexual Orientation Regulation 2003 (UK) – 106

Supply of Goods And Services Act 1982 - 84

Theft Act 1968 - 79

Wills Act 1837 - 98

International

Code du Statut Personal 1956 - 105

Family Statute Law Amendment Act 2005 (Canada) – 48

Muslim Marriages and Divorces Registration Act 1974 (BanglaDesh) – 104

Muslim Intestate Succession Ordinance 1931 (Sri Lanka) – viii, 17

Muslim Marriages and Divorces Act 1951 (Sri Lanka) – ix, 17, 18

Muslim Personal Law (Shariat) Application Act 1937 (India)- viii, 17

Ottoman Law of Family Rights 1917 - 63

Registration of Muslim Marriages Ordinance 1896 (Sri Lanka) - 17

Preface

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"If ye fear a breach

Between them twain

Appoint (two) arbiters,

One from his family

And the other from her;

If they seek to set things aright,

Allah will cause

Their reconciliation:

For Allah hath full knowledge

and is acquainted with all things"

(Al-Qur’an – Surah 4, Verse 3)

Yusuf Ali Translation

The true function of a lawyer is to unite parties riven asunder

Mahatma Ghandhi

A dispute is a problem to be solved, together, rather than a combat to be won

Woodrow Wilson

Islamic Shari’ah law is a fascinating subject and if properly understood, would be a panacea for most if not all legal problems.

From newspaper propaganda and parliamentary debates, in most countries, it is apparent that there is considerable resistance for any form of Shari’ah to be introduced within the legal systems of those countries. Most objections seem to arise out of the fear of a parallel legal system operating to undermine their own legal systems. It is the same in countries in the European Union, the Americas and Canada and also in some countries in the Asia Pacific region like Australia and New Zealand. But it is ironic though that in countries that obtained independence from countries which obtained independence from the British, Dutch or the French, the colonialists ensured that adequate safeguards were provided in the independent constitutions for minority religions in those countries before they granted independence to them. Thus, India with a large Muslim population within its inhabitants has the Muslim Personal Law (Shari’ah) Act 1937, Sri Lanka has Muslim Intestate Succession Ordinance 1931 and the Muslim Marriages and Divorces Act 1951. Similar provisions are present in Bangla Desh, The Philippines, Thailand, and all the African countries. Although there are objections from Parliamentarians and the Press, certainly in the United Kingdom, for the adoption of the Shari’ah at least in limited application, a powerful lobby is emerging for recognising the importance of the Islamic Shari’ah at least as a means of settlement of civil and family disputes.

One time British Lord Chief Justice, Lord Philips and the Archbishop of Canterbury, at the time, Rowan Williams were bold enough to admit that there are aspects of the Islamic Shari’ah that could easily be accommodated to be applied under the British legal system. Of course the Lord Chief Justice and the Archbishop got severely criticised in the press. Nevertheless, the sentiments expressed by them cannot be dismissed lightly. I intend to provide a case to support the Lord Chief Justice and the Archbishop that there are elements in the Islamic Shari’ah principles that could easily be accommodated under the British legal system. As pointed out in the last paragraph, if it was possible for Britain to accept these principles in the colonies they ruled and left behind like India, Sri Lanka and Malaysia and embody and guarantee those safeguards in the post-independence constitutions they provided, it is submitted that certainly there is room within the British constitution to accede to Muslim demands for some respite to choose the manner in which Muslims want their family and matrimonial disputes resolved.

In the census of 2010 it was stated that 2.9 million Muslims lived in England and Wales. That accounts for 4.6% of the population. As much as the other 95.4% of the population has rights, it cannot be denied that Muslims also have rights to choose by what system that they want their disputes to be settled. If it is the Shari’ah so be it.

Undeniably there will certainly be areas, particularly those remitting hudud punishments that would infringe upon the Human Rights Act 1998 and Universal Declaration of Human Rights.

Suggestions by the Lord Chief Justice and Archbishop of Canterbury are to allow some aspects of the Shari’ah that can be accommodated within the British legal system.

In this book, therefore I have comprehensively analysed the objections, the support and areas of the Islamic Shari’ah law that can be safely accommodated within the British legal system.

Of course most feminists will find it a bitter pill to swallow since they claim, without any foundation, that Shari’ah denies them all rights and that they will be browbeaten into submission in a "Mullah dominated court. Perhaps they should research into the conference that the French held in 586 CE to discuss whether women had souls or not, and if they had souls, were these souls animal or human? In the end, it was decided that they were human! But created to serve men only. It is recorded that until 1805, English law treated women as chattels and allowed a man to sell his wife at six pennies. So cheap!! Also during the time of Henry VII, the English parliament issued a decree forbidding women to read the New Testament, because they were regarded as impure. I have attempted to address the issue of women’s rights and the honour given to women under Islam and to demolish these arguments and myths perpetuated by self- interested parties, in other sections of this book.

At the same time I have also attempted to compare certain aspects of the British law against those prescribed under the Shari’ah to make the work more interesting and show that the burden and standard of proof in cases involving hudud are much more stringent under the Islamic Shari’ah than under the British common law, which effectively means that Islam provides greater safeguards to those committed in criminal cases than those provided under the British criminal law. I have also attempted to introduce the Shari’ah in its correct perspective as a first step in order to acquaint my non-Muslim readers the nature of the Shari’ah as believed and understood by Muslims.

I am certain that this book will be of immense interest to students of law, lawyers and also (to some limit) to students undertaking theological research.

1

Introduction

The Islamic Shari’ah has been portrayed by those who do not understand it as a ‘barbaric legal system’ executed by ‘kangaroo courts’. Nothing can be far from the truth. Thus acceptance of the Islamic Shari’ah, in its correct perspective as a ‘way of life’ has taken a back seat. This is certainly true after the 9/11 New York World Trade Centre and subsequent 7/7 London, terrorist attacks, the possibilities for legal pluralism and tolerance have taken a set- back. Not that it was any better before that.

These events had significant disadvantageous for Muslims in particular. The rights or wrongs of what took place during those fatal events has been debated from the time of their occurrences and will continue for a long time. These events might even be written into history books, if not for anything else, at least for political gain. The debate about people responsible for these dastardly acts will also continue, as serious doubts have been cast on the identity of the parties involved. Perhaps the conjecture will linger and