Thursday, November 30, 2006

Order In Court

To describe Somalia as the rectum of nations is to grossly slur the rectum.
At least the humble rectum serves a purpose; performs a function; has a point.
The same cannot be said of Somalia.
It should be right up there with Mexico and Romania on any sane person's list of places they really don't want carry cash.
It combines the worst elements of African culture - tribalism and violence - with the worst elements of Islam; violence and tribalism. It produces nothing but bloodshed and pain. To all intents and purposes it is a hole in the map, the very word 'Somalia' nothing but a legal fiction.
Some of us might notice if it no longer existed - but it's doubtful if few would care.
In the early 1990's, Somalia developed a reputation for fierce lawlessness. This was partly on account of the events of October 3-4 1993, when 18 US Rangers were killed during the Battle of Mogadishu - the so-called 'Black Hawk Down' incident. For some reason, this has always been painted as an American defeat - but the numbers tell a different story.
The Americans killed between 750 and 1,500 Somalis, a truly phenomenal kill ratio of anywhere between 41 to 83 dead Somalis for every 1 dead American; proof that the world's most successful nation is not only very good at peace, justice, the rule of law and all that sort of stuff but also very, very good at making very sharp objects that move very fast and really, really hurt when they hit you.
One is quite sure that there are Somalis who deplore the mess their countrymen have made of their homeland, so it's inappropriate to suggest that being Somali is something to be embarrassed about - however, by the same token it might be thought that those Somalis who have been granted the privilege of living outside Somalia would appreciate the benefits that living in somebody else's culture, one built on peace and civic brotherhood, can bring.
And perhaps even be grateful.
But as far as some Somalis are concerned, that doesn't seem to be the case.
According to the BBC, one such Somali is 29 year old Aydarus Yusuf -
"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 answer to Yusuf's problem is straightforward. He doesn't feel at home - so he should go where he would feel more at home; Somalia.
However, Yusuf isn't content just to talk nonsense; he play acts it was well -
"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. "
It is hard to believe that this behaviour is not in some way criminal. There must be some old 14th Century statute still floating about which outlaws the convention of private courts.
If Yusuf wants to sit around chewing the khat with his homeboys and bitch about the foul and racist British oppressor's unfair refusal to allow them to tool round Peckham in open jeeps while toting rocket-propelled grenades, an activity which has played a very prominent and important role in recent Somali history, then fine - it's a free country.
What has helped both make and keep it free has been its citizens' recognition that they live under one law. Saying you run a Somali tribal 'gar' is the sort of thing you tell the council when you're pumping them for a cultural activities grant - but not the sort of admission that will endear you to any citizen, regardless of creed or colour, who values the rule of law.
One law.
But Aydarus is not alone in his use of parallel legal systems; it's just that his has gone gar-gar and started handing out criminal penalties -
"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."
Although this all sounds hunky-dory, there's one slight problem with it; certainly as far as the law of Scotland is concerned.
If any accused person receives bail, it is a breach of that bail for them to have any contact with witnesses!
I don't know the English position - perhaps a commentor might confirm whether the same rule applies on the wro-other side of Hadrian's Wall.
Forget the fathers and uncles - where were the police?
But it gets worse -
"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."
Dr. Shah doesn't seem to understand that social harmony flows from the rule of law, the one law - not the other way round.
If Somalis want to live harmoniously with Brits inside Britain, observing British laws and dumping the old country's absurd ways might be a good place to start.
The report continues,
"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. "
Talmudic law as a form of arbitration?
Unacceptable. Whilst having no background in Talmudic law, a situation might arise where a just settlement under that law might compromise a litigant's rights and remedies under English law.
Although the Beth Din might work for those Jews prepared to be bound by its strictures, to all intents and purposes it is not an arbitration. An arbitration is just what its name suggests - arbitrary. However the Beth Din's settlements are founded on a series of principles which are not founded in English law, but in another legal code - and in a civil society, all disputes must be settled according to the same code, with all litigants having recourse to the same rights and remedies.
Otherwise, we cease to be a nation of citizens. Everyone's just doing their own thing instead.
It's all down to a flaw in English law -
"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."
If a civil court makes an unreasonale decision, there exists a right of appeal. To whom does one appeal an unreasonable decision of the Beth Din?
To the courts? Without breaching the terms on which the Beth Din was approached and without a crisis of conscience?
But now it gets much worse -
"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. "
Jihad. Beheading. All very simple stuff.
"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. "
Well, let's resurrect the Special Patrol Group to smash up their meetings.
It continues,
"...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."
But again, what might be determined reasonable by a Sharia court might be wholly unreasonable under Her Majesty's law; and one of the icky, nasty, piece-of-chewing-gum-on-the-sole-of-the-shoes things about being a British citizen is that the status of 'British citizen' didn't appear overnight.
It didn't come into being as the third wish from the Genie of the Lamp.
It was a thing that evolved from a sense of nationhood - with one of that nationhood's pillars being the recognition that we all adhere to the same law.
It's a platitude to say that it's better for 100 guilty men to go free than for one innocent man to be jailed.
By the same token, it would better for us all for all religious and alternative courts to be closed rather than have one British citizen suffer an injustice at their hands.


Anonymous said...

"I don't know the English position - perhaps a commentor might confirm whether the same rule applies on the wro-other side of Hadrian's Wall."

No idea, personally.

But I suspect if it did exist, the police in this case would have turned a blind eye to it in any case, out of 'respect for cultural diversity and recognising the right of ethnic communities to.....' (can't be bothered to regurgitate the rest...)

Just as they'd probably turn a blind eye to people exercising their ability to 'tool round Peckham in open jeeps while toting rocket-propelled grenades' long as they didn't get too cheeky about it.

Anonymous said...

I have noticed a definite change, in recent years, as Muslim friends and acquaintances have started not to bother with the official ‘civic’ component of their marriage ceremonies.

As no special benefit can now be derived from the British institution of marriage, I can only see this situation getting worse. Also, there’s not so many awkward questions asked about the partner’s immigration status and incest rating.

Anonymous said...

Interestingly, our ancestors have been here before.
One of the greatest strengths of the Roman Empire was Roman Law which applied to all citizens alike from one end of the Empire to the other. It was the arrival of the Goths and other tribes who insisted in being judged by their own law that started the collapse of the Empire.
With reference to Somalis in particular, my experience of these charming people is limited to the families the council has housed locally. It has however lead me to believe that arms dealers should be regarded as valued members of the community and the export of their fine wares to certain countries should be expedited. I particularly recommend those ingenious plastic anti-personnel mines that are so hard to locate and maybe some cluster bombs and even some aircraft to drop them from. It needn't cost a great deal but donations could be solicited. Then closing the borders and waiting ten years or so should just about do it.

Anonymous said...

I don't know about sharia law, but the Beth Din mostly decides disputes specific to questions of Judaism. Monetary disputes can be brought to the Beth Din in its capacity as an arbitrator (arbitration being a recognised form of alternative dispute resolution in this country): both parties sign an arbitration agreement agreeing to be bound by its ruling. If there is a dispute after the ruling, the parties can take the issue to the secular courts.

As I understand it, neither sharia nor battei din go anywhere near criminal law, and if Somalian "courts" do then that is a bridge too far - but the civil court system in this country is incredibly slow, incredibly expensive, and incredibly difficult to understand, and as long as religious courts act within their capacity as approved arbitrators I don't see anything sinister about about them resolving small issues between people who can't afford the time or money to go through the civil justice system.

Anonymous said...

If you believe in the Rule of Law then you can't start dithering about which Law we're going to obey this week.

This should be stopped, and those taking part should be arrested and charged. And if any barristers or solicitors are involved they should be struck off for taking part in illegal activity.

Anonymous said...

Er... it is legal, as in permitted by English law, to take your dispute to arbitration rather than to the civil courts. So there is no offence with which anyone could be charged, and no illegal conduct for which any barrister or solicitor could be struck off.

Anonymous said...

Indeed. I can't believe the Devil, as a professed libertarian, doesn't support people's rights to resolve domestic disputes based on the rules of their choice - whilst always remaining subject to the provisions of English law.

Obviously, the Somali criminal court is totally unacceptable and should be closed down forthwith.


Anonymous said...

I guess it's redundant to complain about the Devil being a little harsh, but ... er ... you were a little harsh on Romania (and maybe Mexico too, but I have never been there so will have to let some Mexican do his own defending).

I walk around Bucharest quite happily with cash and the various accoutrements of the teched-up mobile lawyer and have never felt in danger. Nor have I ever met a Romanian I didn't like. Nice people (and more than averagely attractive too).

Arbitration and other forms of ADR are fine within the framework of the English Law. Criminal law is another matter, however - much as we might occasionally like the full barbaric force of Sharia criminal law applied to some of our chavscum.

Actually, I also have to demur from Katy Newton's observation about the slowness etc. of the English Civil Courts. These days they are just as quick as, if not quicker than, available local or international arbitrations. Not everything in England is getting worse; only the things the politicians are involved in.

I digress. Anyway, lay off the nice Romanians, OK?

Anonymous said...

"..between 41 to 83 dead Somalis for every 1 dead American.." suggests not a facility for delivering really sharp objects, rather an American proclivity for killing people unable to defend themselves.

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