Reposted from:
http://news.bbc.co.uk/1/hi/magazine/6190080.stm

Ethnic and religious courts are gaining ground in the UK. Will this lead to different justice for different people?

Aydarus Yusuf has lived in the UK for the past 15 years, but he feels more bound by the traditional law of his country of birth - Somalia - than he does by the law of England and Wales.

"Us Somalis, wherever we are in the world, we have our own law. It's not Islamic, it's not religious - it's just a cultural thing."

The 29-year-old youth worker wants to ensure that other members of his community remain subject to the law of their ancestors too - he helps convene an unofficial Somali court, or "gar", in south-east London.

Aydarus is not alone in this desire. A number of parallel legal universes have been quietly evolving among minority communities. As well as Somali customary law, Islamic and Jewish laws are being applied and enforced in parts of the UK.

Islamic and Jewish law remains confined to civil matters. But the BBC's Law in Action programme has learned that the Somali court hears criminal cases too.

One of the most serious cases it has dealt with was the "trial" of a group of young men accused of stabbing a fellow Somali.

"When the suspects were released on bail by the police, we got the witnesses and families together for a hearing," says Aydarus. "The accused men admitted their guilt and apologised. Their fathers and uncles agreed compensation."

'Legal pluralism'

So how did this court come about? Some academic lawyers see these alternative legal systems as an inevitable - and welcome - consequence of multiculturalism.

Dr Prakash Shah, of London's Queen Mary University, advocates this "legal pluralism".

"Tribunals like the Somali court could be more effective than the formal legal system in maintaining social harmony."

Former judge Gerald Butler QC says that while courts such as the Jewish Beth Din can work properly, it's essential that all of the involved parties "freely and voluntarily agree to the jurisdiction... and that they conduct their proceedings fairly and properly". He adds: "What they mustn't do - and this must never happen - is to stray into the field of criminal matters. That simply would never be acceptable."

While religious leaders in the UK's Jewish and Muslim communities have not sought to enforce their own versions of criminal law, they have steadily built up their capacity to deal with civil matters within their own religious codes. What's more, they are doing it with the help of English law.

The Beth Din is the most formally entrenched of these minority courts. The UK's main Beth Din is based in Finchley, north London.

It oversees a wide range of cases including divorce settlements, contractual rows between traders and tenancy disputes.

The court cannot force anyone to come within its jurisdiction. But once someone agrees to settle a dispute in the Beth Din, he or she is bound in English law to abide by the court's decision.

This is because under English law people may devise their own way to settle a dispute before an agreed third party.

Crucially, the legislation does not insist that settlements must be based on English law; all that matters is the outcome is reasonable and both parties agree to the process. And it's in this space that religious courts, applying the laws of another culture, are growing in the UK.

"Orthodox Jews go to the Beth Din to settle their disputes," says Jonathan Greenwood, a solicitor who represents many Jewish businessmen at the court.

"They believe it is a religious obligation to go there [and seek redress under Jewish law] rather than the secular courts. But it is also usually quicker and cheaper."

Sharia law

Amongst the UK's Muslims there are sharply contrasting views about Sharia or Islamic law in the UK. Sharia is the historic legal foundations of the Islamic world - like English law, it has developed over centuries but is based on simple principles.

In an ICM survey of 500 British Muslims carried out in February 2006, 40% of respondents said they would support the introduction of Sharia in predominantly Muslim areas of Britain.

The UK's most prominent Muslim organisation, the Muslim Council of Britain, opposes the idea, saying it will not support a dual legal system.

But some of Britain's Islamic scholars have called for a different approach - Sharia legal code in areas such as family and inheritance, applied through the secular courts.

Mohammed Shahid Raza, a leading Islamic scholar, claims this is a workable model with a British precedent: "When Britain was ruling India, there was a separate legal code for Muslims, organised and regulated by British experts of law."

There is already a network of Sharia councils in the UK. They are not recognised as courts but are seen as essential by those Muslims seeking advice and religious sanction in matters such as divorce.

Ayesha Begum sought an Islamic divorce from the Muslim Law Shariah Council in west London.

"I had obtained a divorce in the secular courts - but my husband refused to divorce me Islamically. In English law I was seen as a single woman but by Islamic law I was still married to him.

"I'm a practising Muslim and I wanted to do the right things in the eyes of God. It was very important I obtained an Islamic divorce."

But Cassandra Balchin, a convert to Islam and spokeswoman for the group Women Living Under Muslim Laws, is concerned about the growth of these minority legal systems.

"Very often traditional forms of mediation can disadvantage vulnerable groups, such as women, within a community.

"I'm concerned about how much choice the weaker party would have in submitting to the governance of these alternative forums."

Despite Ms Balchin's fears, Sharia councils have already begun to follow the Jewish model of turning themselves into recognised courts of arbitration.

Faisal Aqtab Siddiqi, a commercial law barrister and head of the Hijaz College Islamic University in Warwickshire, says he has already adjudicated in a number of contractual disputes.

"Because we follow the same process as any case of arbitration, our decisions are binding in English law. Unless our decisions are unreasonable, they are recognised by the High Court."

Law in Action is on Radio 4, Tuesdays at 1600 GMT, or any time at the Law in Action website.


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http://news.bbc.co.uk/1/hi/magazine/6190080.stm