The Road Not Taken - Islamic Shari’a courts in the Netherlands

Law, Society & Justice, SCC 171

Bas Tönissen & Jochem Gerritsen

SSC 171

Prof. Ippel

December 14, 2010

 Islamic Shari’a courts in the Netherlands 2

Table of Contents

Introduction 3

What is Shari’a family law? 4

Current situation in other countries 6

Legal discussion 7

Current situation in the Netherlands 10

Social consequences 11

Conclusion 15

References 16
 Islamic Shari’a courts in the Netherlands 3

Introduction

‘In the West, the idea of Shari’a calls up all the darkest images of Islam... It has reached the

extent that many Muslim intellectuals do not dare even to refer to the concept for fear of

frightening people or arousing suspicion of all their work by the mere mention of the word.’

- Tariq Ramadan in Western Muslims and the Future of Islam, 2005

This quote rings true to everyone who has seen the coarsening of the Islam debate and the rise

of the PVV in the Netherlands. The very word Shari’a and especially the mention of its

introduction in the Netherlands inspire us with fear; a fear that may prevent it from being

rationally analysed. In this paper, we set out to do just that. We will try to provide an insight

in Shari’a family law, its application and the possibility of establishing so-called Shari’a

family courts.

To do that, we will first look at the nature of Shari’a family law. What is its character and

what are its practices? We will then give a brief case study of two Western countries that have

already implemented Shari’a in some form, to examine the effects. With that done, we set out

to look at the legal ramifications of Shari’a family law and the place it can occupy in the

Dutch legal system. And finally, we will analyse the social consequences and desirability of

having Shari’a family law in the Netherlands.

We hope that through this paper, we may contribute to a more thorough insight into Shari’a

and religious law in general and a better assessment of its viability in the Netherlands.
 Islamic Shari’a courts in the Netherlands 4

What is Shari’a family law?

Before we are able to discuss the merits of Shari’a family law in any way, we must

first establish what it is. In this first chapter, we will give a brief historic overview of Shari’a

and its main characteristics, after which we will focus on the different aspects of family law

within the Shari’a.

Shari’a, meaning ‘the path to follow’ (Walsh & Hemmens, 2008, p. 339), is best

described as Islamic divine law. It is a legal system based on the holy book of Islam, the

Qur’an, and thereby directly on the will of Allah. This makes it, according to Walsh &

Hemmens (2008), ‘unchangeable and binding to all people’ (p.340). ‘The Qur’an functions as

a constitution, laying out general principles that must be interpreted and applied to a variety of

specific cases’ (p. 339). In the subsequent centuries, Islamic legal scholars have developed a

detailed legal code based on this constitution, which they have come to call ‘the path’

(Shari’a). It must be noted that different legal schools have emerged within Shari’a, and that it

may be impossible to speak of the Shari’a as a uniform system (Hallaq, 2005). However, for

the purposes of this paper they are still alike enough to be treated roughly the same.

With regard to Shari’a family law, we can define a number of practices and characteristics

that are relevant to our research:

• Talaq, ‘unilateral divorce by the husband’ (Rahmeen, 2007). An Islamic husband

always has the right to pronounce a divorce when he so wishes. His wife, to obtain a

divorce, must be able to demonstrate some kind of defect in the marriage, often of a

sexual or procedural nature (Hughes, 1886). Her discontent with the marriage is

insufficient reason for divorce.

• A woman may not marry those of other faiths; a man may marry other ‘women of the

book’, i.e. Jews, Christians and Zoroastrians.

• In the case of a divorce, the father automatically gains child custody.

 Islamic Shari’a courts in the Netherlands 5

• Polygamy is allowed. Polyandry, however, is not. (Rahmeen, 2007)

• A daughter is allowed a share of inheritance ‘equal to one-half the share of her

brother’ (Hallaq, 2005, p.23).

We see that in general, Shari’a often has different provisions for men and women, with

women arguably often drawing the short side of the straw. This stems from the society in

which Islam originated; the tribal law system that it replaced barely gave women any rights

and treated them mainly as commodities. The Qu’ran and Sunna, the word of the prophet,

gave them a legal personality and substantive enforceable rights that were quite a revolution

in their time (Rahmeen, 2007).

It is, therefore, too simple to suggest that Islam is designed to oppress women – one

could argue that early Islam was in fact a movement to liberate women. However, modern-

day Shari’a is still based on that very same system, and a relative improvement from a

situation in which women have no rights at all just does not cut it anymore in a Western

society that has undergone several feminist revolutions. One could say that the focus of Islam

has shifted from its early days as a progressive system to a conservative system; whereas it

started as a system of revolution, it is now a system that (in general) clings to its initial values

and is reluctant to evolve. As a poignant example, many Egyptian men use the word

‘conservative’ in a religious context to promote themselves in personal ads (Luyendijk, 2001).

 Islamic Shari’a courts in the Netherlands 6

Current situation in other countries

Shari’a law does not exist in many Western countries. In Canada however, in 2003 the

Islamic Institute of Civil Justice “would start offering arbitration in family disputes in

accordance with both Islamic legal principles and Ontario’s Arbitration Act” (Korteweg,

2006). This was to accommodate the 400,000 Muslims living in Ontario. This IICJ became

controversial, for even though Shari’a-based arbitration was already possible (Korteweg,

2006), many felt that such a court would undermine Canadian law. After two years, the

province’s premier at that time, McQuinty, did not allow for the courts to establish.

Furthermore, he banished other faith-based tribunals because of this discussion, leading even

to an amendment in the Arbitration Act: Since February 2006, family arbitration is only

allowed if based on Ontario or Canadian law, thus leaving out all religious arbitration

(Korteweg, 2006).

The one country where Shari’a law does exist in some form is England. There,

different Shari’a courts are active. There are ‘unofficial’ courts, such as the Islamic Shari’a

Council, which help mediating and advising Muslims (Atasheen, Namazie & Waters, 2010,

p.10), but are not binding in their judgments. And there is the Muslim Arbitration Tribunal

(Bakker et al., 2010, p. 31). This is a tribunal which falls under the Arbitration Act of 1996. In

short, this means that the judgments of these tribunals are binding by law, providing that the

parties involved have consented to the power of the tribunal beforehand. Therefore, the major

difference between such a court and other councils is that in the ‘MAT’ the court’s judgment

is binding by English law, as it were a civil court case (Atasheen, Namazie & Waters, 2010,

p.9 ). In other councils or courts however, the judgment is not binding by English law, which

is why it can be seen more as if it were mediation.

 Islamic Shari’a courts in the Netherlands 7

The thing that both these countries have in common is that they both have a law called

the Arbitration Act. In these laws is defined how arbitration tribunals can be set up, and what

the requirements for such tribunals and their judgments are. This illustrates that should

Shari’a courts be installed in the Netherlands, a law such as these Arbitration Acts should be

instated with it to regulate such tribunals.

Legal discussion

Due to its arguably discriminatory character, Shari’a law has an inherent tension with

one of the main foundations of our legal system: the Universal Declaration of Human Rights.

Two articles from that declaration are mainly relevant to this study. The first one is art. 16(1):

“Men and women of full age, without any limitation due to race, nationality or

religion, have the right to marry and to found a family. They are entitled to equal

rights as to marriage, during marriage and at its dissolution.” (art. 16(1))

This article is clear and unambiguous, and the level of clash with Shari’a is high. Firstly, it

does not allow for discrimination in marriage on the basis of religion. The fact that Muslim

women may only marry Muslim men, and men may only marry women of the book,

represents the direct opposite of that idea. Then there is the fact that the article entitles men

and women to ‘equal rights as to marriage, during marriage and at its dissolution.’ This rules

out the practices of Talaq, polygamy without polyandry, and basically all other forms of

gender inequality within family law that are legitimized by Shari’a. All in all, this article

makes the outlook of Shari’a in any country that subscribes to the Universal Declaration very

grim.

However, there may be some hope in the other relevant article, article 18:

“Everyone has the right to freedom of thought, conscience and religion; this right

includes freedom to change his religion or belief, and freedom, either alone or in
 Islamic Shari’a courts in the Netherlands 8

community with others and in public or private, to manifest his religion or belief in

teaching, practice, worship and observance.” (art. 18)

This article recognises the freedom of religion, which would generally be the main argument

in favour of having Shari’a. If the freedom to practice a religion is regarded as a human right,

then the Shari’a as a provision to safeguard that freedom must not be obstructed. However,

this article’s somewhat vague wording makes its interpretation difficult. It obviously chooses

a very individual perspective, recognising religion as an individual choice and not reasoning

from a group perspective. It does not necessarily provide a right to apply your religious

perspective to others, especially not if that infringes upon their human right not to be

discriminated against.

But that individual perspective can also be used to justify Shari’a, if we choose the

individual perspective of the woman. If it is also the woman’s religious belief that she has

different rights from a man, and if she consents to being discriminated against, is that still

discrimination? Or is it merely an exercise of her freedom of religion?

This boils down to a very fundamental question of legal philosophy: if I have a right,

can I choose to contract out of that right? Or is my right, being a human right, so inalienable

that it must always be enforced?

Berger (2010) distils two basic views on this question in relation to Dutch Shari’a. On

the one hand, he argues, there is the perspective of personal autonomy and freedom. An adult

can make his own choices regarding his or her lifestyle and is free to consent to almost

anything; the only boundary is that of criminal law. The other view holds that a government

has the responsibility to protect the weaker members of society, and that being both women

and Muslims, ‘Muslim women (…) are in a doubly vulnerable position’ (p.60). Due to their

inferior legal position they cannot always obtain justice within Shari’a, even if they do want

it. There is also the question of whether or not the choice to go to a religious court is actually
 Islamic Shari’a courts in the Netherlands 9

a real choice that can be made in perfect autonomy; if these courts exist, social pressure on the

woman to go to them may be so high that the choice not to do it is effectively no longer an

option. In particular, a study by Farrah Ahmed concluded that in systems where an option for

religious law exists “(i) many people do not enjoy a meaningful right to exit from the personal

laws because of community pressure to conform to the personal laws and (ii) the limited legal

power of individuals to choose the law that applies to them is enough neither to remove other

objections to the system nor to support the claim that the system enhances personal

autonomy” (2010, p.239). Opponents would counter that people take into account the

opinions of their peers all the time and that the woman is still the one that finally makes the

choice.

We must also keep in mind that this dichotomy does not apply solely to Islam – it is a

dilemma that many religions deal with to some extent. Discrimination of women is a recurrent

characteristic in many religions: for an example we need to look no further than the recent

case of the Dutch reformed SGP party, which was tried for discrimination because it did not

allow women eligibility within the party (Zoethout, 2010). It is therefore interesting to

examine the way the Dutch system deals with other religions at the moment.

The Dutch system does not allow for arbitration in the way that the Canadian and

British systems do or did. However, it recognises so-called courts of dispute settlement for all

kinds of religious minorities, such as Catholics (‘diocesan courts’), Jews (‘Beth Din’) and

Protestants (‘church councils’) (Berger, 2010). This kind of dispute settlement does not exist

in an institutionalised form for Muslims. However, Bakker et al. found that 13 of the 15

imams they interviewed for their research into Shari’a in the Netherlands had engaged in

some form of ad-hoc dispute settlement at least once before (2010, p. 75)

The specific difference between arbitration and dispute settlement courts is that

dispute settlement is never legally binding. The choice to go to such a court is a voluntary
 Islamic Shari’a courts in the Netherlands 10

choice for both parties, as is the choice to obey the verdict. Parties always retain the right to

go to a national court, and that national court retains its primacy over all matters of family

law. This primacy is also reflected in the fact that courts only recognise a marriage according

to Dutch law, and so a religious marriage does not in itself have any legal value (Berger,

2010).

Legally speaking, we see clearly that there is no reason not to allow an

institutionalised form of Shari’a family law in itself. If the state respects the freedom of

religion, then it may not deny one religion the provisions that other religions do receive – and

seeing as those other religions already have dispute settlement courts, so should the Muslims.

However, when it comes to the specific rules of Shari’a, it is also clear that they create tension

with the Dutch legal system. And seeing as the Dutch Supreme Court has just ruled that the

SGP had to allow and actively promote the eligibility of women (Zoethout 2010), we could

interpret this verdict as saying that religious discrimination is unlawful even with consent.

Therefore, these courts may turn out to be very much restrained in the extent to which they

can practice actual Shari’a, simply because the Dutch legal system retains its supremacy over

them and it would outlaw many common practices within the Shari’a. With such small legal

leeway, one can almost say that an establishment of Shari’a courts would be a symbolic

measure, as the practice of actual Shari’a is severely limited by Dutch and international law.

Current situation in the Netherlands

In 2006, there were approximately 837.000 Muslims in Holland, which is more or less

5 % of the entire population of the Netherlands. Thus, one could say they have, or should

have a large influence in contemporary society. To cater for the Dutch government, Bakker et

al conducted a research on what kind of arbitration or courts exist for these Muslims in

contemporary Dutch society. For this, they interviewed several Muslims and experts in this

field. Concluding, they stated that they did not found any evidence for Shari’a courts to exist
 Islamic Shari’a courts in the Netherlands 11

in the Netherlands, and found out that most of the time when Muslims have a dispute, they

ask advice from many different persons such as: family, friends, imams or other members

from a Mosque. Sometimes an imam is asked to arbitrate on a dispute, although often only

advice is given. In other words, there exists some sort of mediation and arbitration, but no real

courts are established (Bakker et al., 2010, p. 71, 77, 107, 109).

A very interesting feat of this research was that “almost every one of the respondents

said that the Shari’a in the Netherlands is not exactly the same as the one in for example

Pakistan”. They rather try to live to the Shari’a law as best as possible, as long as it does not

undermine the law of the country they live in (Bakker et al., 2010, p. 109).

This is an important notion, because this would negate the main arguments against

such courts: If these courts are established in accordance with Dutch law, then no women

could be discriminated or minorities oppressed for our human rights clause in the constitution.

This can be done for example by using an expert in Dutch law in the courts, as they do in

England’s MAT (Bakker et al., 2010, p. 31).

Social consequences

Next to the question whether Shari’a family law courts would be possible in the

Netherlands in regard to the law, and whether Muslims would want this to happen, there is

another question of equal importance. Namely, what are the social arguments in favor and

against such courts?

The want

Even though there are no official Shari’a courts existing in the Netherlands right now,

would Dutch Muslims actually want such courts to be established? This is a difficult question

to answer, for we did not have enough time to conduct enough in-depth interviews to have a
 Islamic Shari’a courts in the Netherlands 12

clear view of this, which is why we have to resort to examining other researches and

publications. In Bakker et al’s interviews, only a minority wanted an institutionalized version

of the Shari’a in the Netherlands, with more or less the same arguments as portrayed in the

‘Benefits’ section. However, the majority did not found it necessary to do such a thing,

because as one stated “The mutual differences and disagreements between and within Muslim

societies [are] far too great to apply a uniform ‘Shari’a approach” (Bakker et al., 2010, p. 44).

Furthermore, there does not seem to be a desire or want for such Shari’a courts in the

Netherlands. Until now, “the issue of implementing Shari’a is hardly raised by Dutch

Muslims” (Berger, 2006, p. 181), something which is also emphasized by Bakker et al.

Benefits

All of the benefits such Shari’a courts would have come down to tackling the

problems existing in Muslim societies within Western countries. During the debate in Canada,

Korteweg stated that Muslim women will use Islamic arbitration in any case, with or without

these courts. Therefore, it is better to have them, because this arbitration would then be

acknowledged by the government, and the state can watch over these tribunals (Bakker et al.,

2010, p. 32), to make sure they do not do something out of line.

Furthermore, in some cases Muslims would greatly benefit because of these courts. An

example is that if an Islamic marriage is conducted in another country and the man and

woman move to the Netherlands, this marriage is not official by Dutch law. This would mean

that if one of them would decease, the other one would not inherit anything, for they were not

married by Dutch law.

Another example Bakker et al see fit is the one from Yilmaz, who illustrates the so-

called ‘Limping marriages’. He states that in England there are Muslim men who divorce their

wives under English law, but refuse to divorce them under Islamic law. This could be a grave
 Islamic Shari’a courts in the Netherlands 13

problem for the women involved. Hence, he says that official courts as those in England are

for the better, because the government can keep these Islamic courts in line, and then their

judgments are in accordance with English law (Bakker et al., 2010, p. 32-33).

Harms

According to some, these courts would only be bad for the Muslims involved and

society in general. To answer to the courts in England and Canada, anti Shari’a law

movements have manifested. A good example is the ‘One Law for All’ institution, which

promotes the ‘No Shari’a Campaign’. According to their website (One Law for All) they want

to end the use of Shari’a and other religious laws in England, because it is discriminatory, it is

unfair, unjust and does not promote minority rights, nor does it promote social cohesion.

These claims are not well founded, but they cannot easily be refuted either.

There are indeed parts of Shari’a law and even Shari’a family law which are seen as

condescending or discriminating towards women. An example is the fact that men can marry

women from other religions but women can only marry Muslim men.

However, it is not clear what the effects of the MAT are in England on the Muslims

involved and the English society. Whether they are promoting the discrimination of women or

the social disintegration of Muslims in general (for they would have different laws) is not

known. Therefore, the claims brought forward by those against Shari’a family courts cannot

be proved on the basis of existing empirical research. It is of course possible to take a look at

the Shari’a as a whole, but in such courts the law used would only be certain or amended parts

of the Shari’a, which is why that would not be a fair argument.

Should Shari’a family courts be established, they will definitely be met with distrust

and it would be a controversial subject in contemporary Dutch society. The chief cause of this

is the rise of anti Muslim parties. Good examples of politicians are Pim Fortuyn and, more
 Islamic Shari’a courts in the Netherlands 14

recently, Geert Wilders. His party, the ‘Party of Freedom’ is firmly against the Islam, because

he believes that it is a “violent totalitarian ideology” (Wilders, 2010, p. 13). The great rise of

this party in the latest elections illustrates that a significant part of the citizens of the

Netherlands feel negatively towards the Islam.

Besides the rise of the Party of Freedom one cannot find great anti-Islamic institutions

or parties in the Netherlands. Even extreme right wing parties, which are often affiliated with

such opinions, are not represented in Dutch politics anymore. Furthermore, in the Netherlands

considerable amounts of right extremists cannot be found.

 Islamic Shari’a courts in the Netherlands 15

Conclusion

It is apparent that no real Islamic arbitration courts exist in contemporary Dutch society. And

until now, the Dutch Muslims have not raised the question to establish these courts, indicating

that there is no need for them. However, should Muslims try to establish these courts in the

future, following in the footsteps of other religions, it will certainly be a long and hard road.

The position of women in Shari’a is precarious and generally inferior to that of men. The

discriminatory character of Shari’a towards women creates tension with human rights law,

and raises the question of whether or not rights can be given up if one chooses to. A question

which the Dutch legal system, unlike the British system before it, appears to answer with ‘no’

when it comes to rights as fundamental as human rights. An appeal to personal autonomy

justifies the practice of Shari’a law; however, it is questionable whether or not social pressure

erodes this notion of autonomy. Furthermore, social resistance may be very high.

The road will undoubtedly be filled with obstacles and it remains to be seen whether or not

anyone is actually willing to conquer them all.

 Islamic Shari’a courts in the Netherlands 16

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