Need for more support for our UK enforcement officers and judges when
dealing with domestic and cross-jurisdictional aspects of Shari’aLaw
By Dr Lu’ayy Minwer Al-Rimawi
When assessing it apolitically, Shari’ain the UK domestic legal system poses both
challenges and opportunities.Some of such legal challenges have been recently highlighted
in a number of training sessions which this author was instructed by the UK’s Crown
Prosecution Service(CPS) to deliver in-house in the area of Islamic financial law.
Contextualising Shari’a’sinterconnectedness with business and the marketplace since
the early days of the inception of Islam, the fundamentals of Islamic financial law, the
controversy of plurality of Islamic jurisprudence (Fiqh), the contribution of the Qur’an and
Sunna to Islamic business rules, Shari’a’sconstitutional relevance in the modern day were
among topics tackled. This is by no means the complete constituentsof the various threads
to the discussion required on the subject matter. But it is rather a structuredintroduction to
a multilayered topic oftenhallmarked by legal incertitude. For, to have in-depth appreciation
of a subject matter such as Islamic financiallaw, which is deeply imbued in traditional Fiqh,
both Shari’a’smicrotransactional principles and its macro-jurisprudentialobjectives need to
be fully understood.This is especially the case, given that Islamic financial law is often beset
by imprecision, unreliableliterature and misapplication in practice.
Nevertheless, whatwas evident from these training sessions was the proactiveness of the
Crown Advocates and Special Prosecutors who attended as displayed in their expert and
more general interest in the subject matter. Their genuine engagement, open-mindedness
and legal perceptiveness is a credit to the CPS in its wider attempts to surmount the many
challenges wrought by domestic and cross-jurisdictional applications of Shari’alaw.
Equally, a tribute to our British legalsystem, which globally is amongst the very best in its
professionalismand dedication to justice and procedural propriety.
Enforcement issues and legal facets pertaining to asset tracing when there is a Shari’a
element are further compounded by multiplicity in Fiqh rulings and muddying of the
parameters of the relationship between national (often secular) laws and Shari’a. Added to
this are problems often encountered in enforcing foreign (judicial and arbitral) decisions/
awards –or lack of legal assistance when conducting extra-territorial investigations at
pretrial contexts. Also, by defendants’/disputants’attempts to exploit Shari’ato obfuscate
legal boundaries tohide, mix or transfer assets or title to such assets.
The fact that there are no formal guidelines adopted in the UK (even at a basic advisory level)
to provide lucidity on Shari’alaw in the UK criminal justice system does contribute to the above
dissatisfactory state of affairs. This is especially as there is lack of authoritative treatment of
Shari’a, coupled with often lack of clarity vis-à-vis the identification of its technical rules
(intermeshed with its legal maxims, known as Al-Qaw
aʿid Al-Fiqhīyah) and the implication of its
applicability domestically under challenges posed, for example, by the 1980 Rome Convention.
The need for such formal guidelines is even more imperative given that the principles of
Shari’a(which stand firm in supporting weaker parties to a transaction, require full disclosure and
contractual good faith) appear to be pushed aside for the sake of commercial profiteering. In this
respect, there is no industry which typifies the gulf betweenhonest jurisprudential aspirations and
contradictory practices more than it is observed in the Islamic financial services industry today.
For their part, the approach of consecutive UK Governments seems perfunctory, barely
scratching the surface of the challenges. It also seems to be historically punctuated by political
Journalof Financial Crime
Vol.28 No. 1, 2021
© Emerald Publishing Limited