The Conversation: What is Islamic dispute resolution and why is it controversial in Australia?
The following opinion piece by Dr Maria Bhatti from the School of Law was first published with full links on The Conversation(opens in a new window).
Islamic dispute resolution involves resolving disputes without going to court and is similar to alternative dispute resolution, or ADR.
But Islamic dispute resolution has been controversial. Australia’s Muslim community is divided on whether it should be used here, its potential risks and benefits, and how it would sit with Australian law.
Why would an established form of mediation be so controversial? And what are the issues with implementing it in Australia?
Remind me again, what is dispute resolution?
The form of dispute resolution typically used in Australia, ADR, usually involves an independent third party helping parties to resolve matters without involving courts. Alternatively, it may involve negotiation between parties and their lawyers without a third party.
It’s encouraged because it is an efficient method of resolving disputes. Parties can save money and time and reduce the stress involved with court proceedings. It’s often referred to as appropriate dispute resolution.
ADR traditionally consists of negotiation, mediation, conciliation and arbitration. In both domestic and international arbitration, the final decision is binding. Negotiation, conciliation and mediation result in non-binding decisions.
In the field of international commercial arbitration, only commercial matters between international parties can be the subject of arbitration, as opposed to family, criminal or civil matters.
What about Islamic law?
Similarly, Islamic law encourages disputes to be resolved outside court through tahkim (arbitration) or sulh (mediation). The dispute resolution processes in Islam are part of a larger Islamic legal framework, known as Islamic law or Shariah.
There are two main primary sources of Islamic law. The first is the Quran, which is the holy book for Muslims. The second is the hadith, which are written collections recording the actions and sayings of the Prophet Muhammad (Sunna). Islamic law is also divided into different schools of jurisprudence and varying interpretations.
International commercial arbitration can also be subject to Islamic law. The Asian International Arbitration Centre has developed i-Arbitration rules (“i” signifies compliance with Islamic law). This caters for international parties who are interested in resolving their disputes through Islamic procedures.
For example, an arbitrator may choose not to include interest (riba) when determining a penalty in international commercial arbitration subject to Islamic principles. Although Islamic law encourages trade and profit, it prohibits riba. This prohibition is mentioned both in the Quran and the hadith and is considered an unethical and excessive gain.
The i-Arbitration rules are also consistent with the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules.
What are the objections?
In 2009, Australia’s Muslim community was divided on the issue of establishing Islamic dispute resolution tribunals. One board member of the Islamic Council of Victoria supported and advocated the idea. But the Islamic Council of Victoria, as an organisation, opposed it.
The council was afraid that misconceptions about the term “Shariah” would trigger an unhealthy debate. Another concern raised by a representative of the Islamic Women’s Welfare Council of Victoria was that certain patriarchal interpretations of Islamic principles could place women at a disadvantage.
For example, reports from the UK suggest that there have been cases where male mediators have made it more difficult for women to obtain a divorce because they believe it should be the last resort. Also, some mediators were unaware of issues such as domestic violence and other structural injustices impacting women.
This issue was again highlighted in the media in 2011 when the Australia Federation of Islamic Councils made a submission to the federal parliament’s Committee on Multicultural Affairs calling for a recognition of certain aspects of Islamic law.
In response, the then federal attorney-general, Robert McClelland, very clearly responded that there was no place for Islamic law in Australia.
How might it work with Australian law?
However, the proposal for implementing Islamic dispute resolution and the criticisms in relation to women being at a disadvantage were not thoroughly investigated.
There was no clear empirical research about whether women’s rights would be infringed in Australia if it was implemented.
It was also unclear how Islamic dispute resolution would operate. Would it function separately from or with Australian law? And would it be part of traditional ADR or separate from it? If it did form part of traditional ADR, would mediators and arbitrators be required to go through professional training and accreditation?
What can we learn from the UK?
Muslim Arbitral Tribunals operate in the UK and are subject to the law of England and Wales; they do not operate as a parallel legal system. They determine commercial, civil, family and personal law matters.
Although the tribunal may arbitrate on commercial matters, the decision can only be enforced in court if it meets legal requirements under the law of England and Wales. The tribunal can also mediate family law disputes about children and domestic violence, but such decisions are not binding.
In 2018, an independent review of these tribunals was presented to parliament. It recommended Muslim tribunals could provide women with more agency by addressing their concerns and involving them in dispute resolution procedures. Other recommendations included involving professional mediators who are aware of matters such as the rights of women to divorce, and ensuring mediators are professionals who are trained, accredited and educated about women’s rights.
Researchers from the universities of Sydney and Melbourne are exploring the experiences of women, men and mediators who have used informal community processes to resolve family disputes. The Australian Research Council is funding the project. It will shed light on whether Islamic dispute resolution processes will cater for issues such as domestic violence and the rights of women to divorce.
If the research suggests Islamic dispute resolution can operate in harmony with Australian law and provide women with agency, there is no reason why ADR should not cater for Muslims. If the operation of Muslim tribunals proves to conflict with Australian law and harm women, Muslim tribunals should not be established.
Regardless of the outcomes and recommendations, it is important that such discussions do not form part of a racist and Islamophobic narrative. Rather, Islamic dispute resolution should be further explored with the aim of empowering women and accommodating religious diversity.
7 February 2019