‘Equality before the law’ is not just an empty phrase
On the Law Society’s Discriminatory Guidance on
Sharia-Compliant Inheritance and Wills Interview with Pragna Patel
Maryam Namazie: British law already allows people to leave their estates to whomever they choose so why does a statement signed by a number of groups and individuals label the Law Society’s guidance on Sharia-compliant inheritance and wills discriminatory?
Pragna Patel: The practice note (guidelines) issued by the Law Society is extremely problematic because what it seeks to do is to institutionalise a profoundly discriminatory approach to the question of property settlements, disputes and trusts concerning women and children in minority communities. It is at best a misguided response but nevertheless dangerous, because it is yet another way of reflecting the growing view that civil matters and disputes in minority communities are to be addressed within a religious framework.
The practice notes states: ‘This is the first time guidance has been published for solicitors to assist them with the intricacies of Sharia succession rules, which is the code of law derived from the Quran and from the teachings and examples of Mohammed’.
The immediate question that needs to be asked is why does the Law Society not leave it to clerics to clarify the ‘intricacies’ of ‘Sharia’ rules outside the law for those who want it? How can it possibly think that its role is to guide on religious matters? More importantly, why does the Law Society feel that it needs to support and be seen to publicly support the drawing up of discriminatory wills? Quite apart from the fact that it cannot possibly know what is and isn’t ‘Sharia compliant’ given the many contested interpretations of so called ‘Sharia’ law, it actually wades into religious territory and gives succour to the view that religious and secular laws can operate in parallel with the former applying to minorities and the latter to the white majority society.
The role of the Law Society is to promote legal professional standards so that the law is upheld in a fair and non-discriminatory way. The phrase ‘equality before the law’ is not just an empty phrase. Justice must not only be done but seen to be done. The law is symbolic and aspirational at the same time; it is an important means by which just and democratic societal norms are established. The Law Society has no business in normalising ‘Sharia’ principles in British legal culture. The Law Society also has no business in endorsing and promoting discriminatory religious norms and values for minorities because in doing so, it enhances profoundly patriarchal and unequal social arrangements in minority communities.
Maryam Namazie: If it’s not binding, how can it seriously undermine the Equality Act, citizenship rights and one law for all?
Pragna Patel: Those who argue that it is ‘not binding’ and that it is ‘all a fuss about nothing’, miss the point entirely. The guidance signals the view that no matter how discriminatory and abhorrent certain aspects of minority cultures may be, they must be tolerated and even supported! We cannot underestimate the ways in which religion is creeping into the very fabric of legal structures in our society and it is minority women and other vulnerable sub groups who pay the price. By issuing such guidance, the Law Society is helping to create a context that is conducive to the practice of patriarchal oppression and to the legitimisation of anti-human rights religious norms. Religious norms dictate strict gender roles and codes of conduct for women – codes that deny their right to freedom and equality in the family in a range of matters such as marriage, divorce, children and inheritance.
I have noted that the religious-Right (who have been in the ascendency in our communities since the 90s) have been quietly going about trying to create a parallel legal system in the UK. By engaging in a pincer-like manoeuvre, they have on the one hand, obtained official endorsement for the establishment and operation of alternative religious forums for dispute resolutions on family matters, such as Sharia councils and tribunals, and on the other hand, they have influenced the legal system from the inside by demanding ‘Sharia compliant’ approaches to civil and especially family matters. The Law Society’s response is an example of the latter category.
The guidelines remind solicitors that under ‘Sharia’ ‘…as a general rule, a male heir will inherit twice the amount that a female heir will receive, Illegitimate children are not heirs’. This is really extraordinary since it accepts without question, the inherent discrimination that exists in Islam (as indeed in other religions) against women and children born outside marriage. What happened to the ideals of justice, equality and fairness embodied in the law? Far from promoting equality and justice, by its action, the Law Society is helping to arrest the development of justice born out of struggles for equality by women in minority communities. It is one thing to recognise that discrimination exists in all societies, but quite another for the Law Society to be associated with and be seen to promote relativism to questions of equality and justice. The demand for recognition of separate religious or ‘personal’ laws to address family matters are gaining momentum, but it has serious and even life threatening implications for minority women and children and other minority sub-groups.
Maryam Namazie: According to some groups like the British Humanist Association (BHA), the issue has been blown out of proportion. According to them, the Law Society issued the guidance responding to requests from its solicitors. It is purely ‘guidance’ – the document states ‘Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service’. It’s just advice so that solicitors can provide a service to (Sunni) Muslim clients who want a will that fits with their beliefs. It does not claim to do any more than that. Your response?
Pragna Patel: The BHA would say that wouldn’t they, given that they have led ‘what’s all the fuss about’ chants? I come back to the point: what is the Law Society, a public body that should be preoccupied with upholding good practice and the ideals of justice and equality, doing wading into religious matters and producing guidance on how to draft wills that are ‘Sharia compliant’? The guidelines are deeply offensive to anyone committed to equality and non discrimination. The Law Society’s role is to encourage their members to be compliant on human rights and equality grounds; to foster a culture of human rights that is based on principles of non-divisibility and universality, not to endorse and promote discrimination towards Muslim women and children. This is nothing short of inverse racism. I don’t see the Law Society putting out guidance for those in the wider society who wish to be ‘Bible compliant’ for instance! So why the need to prove their anti-racist credentials in a way that is so dangerous for minority women and children and to the very ideas of equality and justice?
The Law Society’s guidance amounts to nothing less than state sponsored discrimination. It has effectively aligned itself with patriarchal and profoundly misogynist forces in our communities that seek to ensure that minority women stay second class citizens. What a blow to all those Muslim women and men who struggle for their human rights and to all those who want to encourage their daughters to consider themselves as equals to men.
Maryam Namazie: Isn’t this just another example of whipping up hysteria against Muslims or a xenophobic response to Islam as some would say? After all there is a far-Right that uses the issue of Sharia law to scapegoat and attack Muslims and immigrants. It’s not the law, it’s not binding, so it is just another attempt at scapegoating Muslims and raising the Sharia bogeyman?
Pragna Patel: It is easy to label any and every criticism of practices within Muslim populations as just another example of ‘hysteria against Muslims’ and ‘Islamophobic’. I am really getting bored with these accusations because they do not really seek to debate the matter – in this case the separation of religion and the law – but to shut down debate. Discriminatory and harmful practices in our communities cannot be swept under the carpet just because we are a minority and they cannot be talked about as if they are products of neo colonialism and racism as many on the religious-Right and political Left do. Those who argue that the furore by feminists is simply yet another attack on Muslims are the same people who also deny or downplay the practice of for example, FGM, honour based violence, forced marriage, polygamy, child sexual abuse, amongst others, or deny that they are manifestations of women’s inequality propped up by culture and religion. Similar accusations were hurled at us when the question of gender segregation in universities came up. It seems that we can never talk about these things because we live in minority communities. Well, Southall Black Sisters (SBS) has long bucked the tendency to silence us in this way. Indeed from our very inception in 1979, we signalled the view that challenging racism could not be at the expense of challenging women’s inequality and oppression, even if that fuelled racism. However inconvenient these truths are, we have a moral, legal and political responsibility to talk about them even if it leads to the demonization of minority communities. Instead, what we must do is wage the struggle against inequality and racism simultaneously.
Maryam Namazie: Islamic feminists would say that there are feminist interpretations of inheritance in Sharia and so the problem is not Sharia in and of itself. Your thoughts?
Pragna Patel: This is also another excuse that is often heard. It is regularly trotted out whenever the knotty problems of harmful practices and gender inequality in our communities are raised. We are constantly told, including by so called feminists, that the problem is not religion per se but the malfunctioning cultures in which religion is practised. The argument goes that if people only knew and understood the ‘true essence’ of their religion and had the ‘correct’ interpretation, these problems and would not occur. The problem with this argument is that it denies the fact that religion is always mediated through economic, social and cultural processes and that in practice religion and culture are enmeshed in structures that perpetuate all kinds of power relations. So, the use of religion in regulating human conduct is not an abstract matter of debate but one that has life changing and life threatening consequences for those who have no control over their lives.
This kind of argument leads to contestations between different interpretations of religion, each vying to be the ‘true’ and ‘authentic’ version of religion. But when all is said and done, what we are left with is religious essentialism in which all difference and dissent from any kind of orthodoxy is obliterated. There are as many interpretations of religion as there are people, so who gets to decide what is the correct interpretation? Those who decide are those who have institutional power over others, especially women and sexual minorities. At this moment, the Islamic-Right, often masquerading as moderates, now entirely dominate and control the interpretation of Muslim identity and laws, often by subverting the concepts of human rights. This is also happening in other religions.
The Law Society’s practice guidelines tell those drawing up wills to remember that ‘as a general rule a male heir will inherit twice the amount that a female heir will receive…’ So how did it decide that this was the definitive version of Sharia on wills?
That’s one problem with this line of argument but the other problem is that at some point, arguing from within a religious perspective, no matter how liberal, is bound to hit a wall, especially when it comes to ‘wedge’ issues, like sexuality and reproductive rights. All religions are pretty clear about these issues, so no matter how it is interpreted, no religion is going to endorse sexual autonomy or the right of women to control their bodies. You can’t change core fundamentals of religion and those are inherently discriminatory against women and others. I think you rightly pointed out that whilst ‘Sharia’ can be applied in divergent ways, there is consensus within the Muslim schools of thought on the following: the death penalty for apostasy and “sexual crimes” which includes homosexuality and adultery; a penal code based on retribution; on the obligation for women to veil; and in the ordering of men/women and Muslims/non-Muslims according to unequal status before the law.
I think that feminist interpretations of religion can be a useful tactic in certain, limited contexts, especially where secular spaces have completely shut down, but here in the UK, it is dangerous to insist on liberal or feminist interpretations from a religious perspective because this kind of argument is used to undermine the secular spaces that we have struggled to create. The greatest danger posed by this kind of argument as I see it, is that it de-legitimises the view that secularism is a feminist issue for minority women.
Maryam Namazie: How does the guidance unwittingly aid Islamist attempts at subverting democratic laws and principles with a de facto parallel legal system where minority women and children have increasingly fewer rights than other citizens? Where does the Islamist movement come into all this since so far it is mainly portrayed as a personal matter for Muslims?
Pragna Patel: As I have said, the guidance clearly subverts the protection, equality and justice principles in our society in respect of women’s rights. To this end, it serves to further the political Islamist agenda. Fundamentalist Muslims and others from minority religions have been campaigning for many years for the State to incorporate aspects of religious or personal laws into the legal system.
In the last ten years or so, the UK has seen a rise in the demand for parallel legal systems, emanating especially but not only from some powerful Muslim organisations that have campaigned for the right to be governed by Sharia laws in family matters. This demand can be directly linked to the growth of political Islam and more generally to the rise of fundamentalism in all religions. The State has aided and abetted fundamentalist demands for parallel legal systems by strengthening the ‘faith-based’ approach to minorities through government policies on preventing violent extremism, cohesion and now the Big Society and localism agenda. Fundamentalists and religionists alike have also benefitted from the austerity measures which have lessened access to justice for vulnerable groups. Religious or so called faith-based organisations have been empowered to shape and direct public policy and the law on a range of social and welfare issues. In the current situation, for example, both the Jewish Beth Dins and the Muslim Arbitration Tribunals are making use of the Arbitration Act 1996 to formally pronounce religious judgements in areas of family, children (residence/access/custody) and inheritance cases, although they are not supposed to. This has become an ever more pressing issue in the context of legal aid cuts. We see the effects of these cuts in our daily work with abused women at SBS and it is truly frightening because the final safety net provided by the welfare and legal system is literally being taken away from under their feet. Make no mistake: a social contract has developed between the State and authoritarian if not fundamentalist religionists. The latter have capitalised by entering the field of the law and education in particular, with the aim of producing new forms of morality as is evident in the ways in which the Law Society has behaved.
Maryam Namazie: Where do you think people should stand on the issue of Sharia law in general and in Britain in particular?
Pragna Patel: Clearly they must stand with us in opposing these profoundly worrying developments. It must be emphasised that marriage/divorce, family, child custody and inheritance issues are not private matters but rather matters in which State regulation and legal protections are central to delivering women’s and children’s equality and human rights. The suggestion that issues to do with the family should be the subject of arbitrary and culturally relative processes is flawed. We believe that to see them in this way is to undo the decades of feminist input into the development and extension of law and public policy to cover domestic and family issues.
We believe the State does have an important role to play. In particular the State has a responsibility to safeguard the interests of the vulnerable, of women and children and to protect them from violence and abuse. This does not encroach on an individual’s rights to conduct their relationships as they choose but the question of entitlements and rights when that relationship breaks down or comes to an end and especially if there are violations, is most definitely a matter of public concern and carries with it a role for the State. This responsibility must not be abrogated by creating and validating spaces to be governed by religious laws. State backing of religious norms and arbitration systems directly contradicts and flouts equality laws and the Human Rights Act 1998 in the UK. Moreover it contravenes international human rights law. More specifically, the State’s obligations to act with due diligence; and to ensure gender non-discrimination under Article 16 of the Convention for the Elimination of All Forms of Discrimination Against Women, and Resolution 1464 of the European Council on women and religion, which stipulates that member States must guarantee the separation between the Church and the State in order to ensure that women are not subjected to religiously inspired policies and laws (for example, in the area of family, divorce, and abortion law).
The development of parallel legal systems signals the view that it is legitimate for minority communities to operate a second-rate justice system based as it is on unaccountable and partial mechanisms of conflict resolution! This in itself is a racist response to demands for equality and justice, especially in view of the fact that even in countries where State-sanctioned religious laws operate, there are substantial movements, often led by women and human rights activists, for their repeal on the grounds that they are not compatible with universal human rights principles.
It is worth reiterating that if religious arbitration tribunals in relation to family matters are allowed to operate for different communities, they will inevitably dilute the process by which human rights are asserted within society as a whole, thus preventing a culture of human rights from taking root, let alone progressing in society.
Maryam Namazie: Does the difference in attitude to such rules surprise you? In the sense that it is highly contested in many places where Sharia is the law, and tolerated and even promoted in a place like Britain?
Pragna Patel: No it doesn’t surprise me although it greatly depresses me. As black and minority women struggling for rights in the UK, we are knee deep in dangerous waters and really swimming against the tide. It doesn’t appear to matter that elsewhere in the world, the implementation of ‘Sharia’ laws is a highly contested matter and that struggles for democracy and human rights are taking place all the time everywhere. It doesn’t even make a difference that in asylum and immigration law in the UK itself, ‘Sharia’ law has been regarded as highly discriminatory and incompatible with human rights by the courts when determining cases of women fleeing gender persecution from other parts of the world. Yet, public bodies like the Universities UK and now the Law Society are falling over themselves in an attempt to appease the religious-Right whose agenda is to create a parallel legal system.
As feminists, we seek the equal rights of all to one universal legal system. We believe the debate about religious laws should be firmly located within a debate about human rights and safeguarding equalities and not within a politics of identity and cultural and religious relativism. Religious arbitration encourages public bodies like the Law Society to defer decision-making in respect of women and family matters to the religious tribunals and authorities for the sake of expediency and out of fear of being labelled ‘racist’ or ‘Islamophobic’. Moreover, in response to the allegation that a system of universal human rights curtails other rights such as the ability to exercise freedom of religion and belief, it is important to remember the right to religion and belief is not an absolute right, it is a qualified right, to be restricted where it is justified in the public interest. The present legal system may be imperfect but it offers one important safeguard: that the right to manifest religion cannot trump other more fundamental human rights such as the right to life; the right not to be subjected to inhuman and degrading treatment, the right to family life, and the right to non-discrimination on the basis of gender.
Maryam Namazie: How do we further the coalition fighting against Sharia compliant rules in the family or inheritance when the far-Right uses this issue, the pro-Islamist Left defends Sharia over the rights of women and some Muslim feminists stress Islamic interpretations rather than the necessity for secularism? Where can progressive forces meet to move the campaign against discriminatory religious laws forward?
Pragna Patel: This is the critical question and one for which there are no easy answers. At present, we are witness to this unholy alliance between the religious-Right and the far Left who are in bed together. And then we have the problem of some Muslim feminists asserting the right to be ‘Muslim feminists’ which means that they think they can win the struggle for equality by re-interpreting religious texts. I am not sure where we seek allies because our natural allies, many so called feminists and those on the Left have deserted us. I have often said that ours is a very lonely struggle because in this current political climate, we can no longer be sure of our allies. I guess we have to keep on struggling and reaching out and seeking alliances from wherever we can. But we must be careful that the alliances we create are not uncritical or forged out of political expediency. We cannot enter into uncritical alliances with those who wish to use these issues to whip up racism or argue that feminism and secularism are ‘western’ ideals to which minorities have contributed nothing. Instead, they must be forged in a way that enhances our ethical positions based on the principles of justice, democracy, secularism, equality and human rights.
I am always so heartened by the views of the women from all religious backgrounds who come to SBS for instance, seeking support in the face of all kinds of horrors and violence. Even though they are acutely marginalised and face the full brunt of gender discriminatory practices and racism, they are often so clear in their vision of what constitutes a just and fair society. They really help to prevent our politics from losing its moral compass. We need to do more to build solidarity amongst women in our communities rather than look to the usual suspects. The one thing that prevents us from sliding into post modern cultural relativism and regressive identity politics is their demand that we separate the law from religion which they regard as a personal matter and not the basis for the assertion of their rights.