EXPERTISE IN ADJUDICATING RELIGIOUS BUSINESS DISPUTES

 EXPERTISE IN ADJUDICATING RELIGIOUS BUSINESS DISPUTES

 

ES Nwauche (Professor)

Liberal democracies imagine and conceive their judicial officers as omniscient and, therefore, capable of adjudicating all manner of disputes. On the other hand, Judicial administration understands the importance of expertise and often reflects such skills and experience in appointment promotion and location. Courts are divided broadly into civil and criminal divisions just as specialist courts, especially of a commercial type, have become routine and populated by experts. In addition, experts are summoned by courts and also supplied by litigants to enable courts to appreciate the difficulties and nuance of some cases fully.  

Religion is a domain that courts have regularly and successfully engaged in when in most cases, they are asked to rule on the rights of citizens who beseech courts to protect their beliefs and practice.   In some cases, courts have developed  ‘avoidance’  principles by declaring that they are unsuited to determine the sincerity of certain beliefs, including whether such beliefs constitute a religion. Other principles reflect a high level of deference through which courts affirm the autonomy of religious establishments and their determinations in doctrinal disputes. On the other hand, courts have waded into religious disputes, especially when civil and criminal wrongs are an issue. These engagements have proceeded as part of the regular remit of courts. In the case of religious courts, it is not surprising that the composition of religious courts is defined by religious affiliation. Thus, in many states, appointment to Ecclesiastical Muslim and Jewish courts is defined by faith and knowledge of the religion.

Despite checks and balances in the judicial system, there are complaints of wrong decisions due to a lack of skill and competence in a particular area. It is unlikely that a judicial officer can reflect expertise in all fields in all levels of judicial appointments, and it is the case that many countries require an academic and professional qualification as a practitioner and years of experience to qualify as a judicial officer. Using experts, information, and arguments of litigants assists courts in engaging with complex cases and circumstances. In addition, the appellate system provides what is considered good ventilation for dissatisfied litigants to review their cases. The appellate system often addresses issues such as a lack of skills. In appropriate circumstances, final courts add legitimacy to the legal system because they are supposed to correct problems that may have escaped lower courts.

In multi-religious states, there is often a belief that expertise in some religions, especially minority religions, enables judicial officers to address the complexities of intractable religious disputes. For example, there is a requirement that in the appointment of judges of Nigerian appellate courts, some judges must know Islamic personal law or customary law to satisfy the constitutional requirement of a minimum of three justices of the Court of Appeal versed in Islamic personal law or Customary Law in a panel of Court of Appeal to deliberate over an appeal on Islamic Personal Law or Customary Law respectively [s. 247 Constitution of the Federal Republic of Nigeria 1999). The requirement of religious expertise in the Court of Appeal is understandable since appeals lie to that court from the existing state Sharia Court of Appeal and Customary Courts of Appeal. Since there is no requirement for religious expertise in the empanelment of Nigeria’s Supreme Court, it is assumed that the intervention of the Court of Appeal can adequately address all doctrinal issues that the final court could potentially address.

Since Islamic personal law is the appellate remit of Nigeria’s Court of Appeal, it would stand to reason that in other areas of Islamic law, such as Islamic business law, the Court of Appeal is not required to impanel persons with skills and experience in Islamic business law. A good question is if our courts inspire confidence in adjudicating Islamic business disputes without Islamic business law expertise.

Advocate MD Tuba in a trenchant criticism of the first case of Islamic business law to reach South Africa’s Supreme Court of Appeal – “ Lodhi 5 Properties Investments CC v FirstRand Bank Limited [2015] 3 All SA 32 (SCA) and the Enforcement of Islamic Banking Law in South Africa" PER / PELJ 2017(20) - DOI http://dx.doi.org/10.17159/1727-3781/2017/v20n0a1308” captured the dilemma of the South African judiciary and indeed of other liberal democratic states:

“ An increase in the number of Muslims worldwide has …created a demand for pertinent financial transactions and services to comply with Islamic law. As a result, conflicts of law often arise where the principles of Islamic law are incorporated into the terms of financial agreements concluded in a secular context. Judicial officers in non-Muslim jurisdictions face challenges in terms of how to apply and enforce agreements incorporating these principles. This is particularly so with regard to disputes brought before secular courts in common law (and civil law) jurisdictions such as South Africa” p. 3

One clever way to ensure that regular courts address issues of religious disputes is to choose the religious principles to guide the interpretation of the contract. The challenge remains for States to weigh the extent to which they would require religious expertise in appointing and promoting judicial officers.