Australia Gets It Right on Sharia Implementation

18 May Australia Gets It Right on Sharia Implementation

The Australian Government is holding a national inquiry into multiculturalism.  The Australian newspaper yesterday reported that the Australian Federation of Islamic Councils has requested the introduction of Sharia law under the umbrella of multiculuralism (the AFIC submission can be downloaded here: other submissions are available here).  However, Australian Attorney-General, Robert McClelland has stated that:

“Sharia law has no place in the Australian legal system.”
“As our citizenship pledge makes clear, coming to Australia means obeying Australian laws and upholding Australian values.”
“Australia’s brand of multiculturalism promotes integration. If there is any inconsistency between cultural values and the rule of law, then   Australian law wins out.”
“People who migrate to Australia do so because of the fact we have a free, open and tolerant society where men and women are equal before the law irrespective of race, religious or cultural background.”
“Indeed, all applicants for citizenship swear collective allegiance to the people of Australia, and undertake to respect our customs and abide by our laws. The values underpinning those principles will not be changing.”

Arguments used by the Federation of Islamic Councils and its representatives for accommodating sharia law include:

• Islam itself advocates legal pluralism, each religious community following its own laws.
• Islam allows a role for customs or cultural practices, provided that they do not conflict with fundamental requirements of Islam.
• The dhimmi system under the Ottomans allowed non-Muslims to be governed by their own law, giving them power and dignity in their own right.
• Although modern scholars now reject the dhimmi system as unjust, Muslims in the West are treated worse than dhimmis, because they are compelled to live under Western law and are not granted their own ‘Millet’ or legally recognized religious community.
• Islamic law is part of Muslims’ culture, so multiculturalism should provide a place for Islamic law.
• The Archbishop of Canterbury and Lord Chief Justice of England have both endorsed religious pluralism through accommodations sharia law.
• The Australian Government already actively supports accommodation to sharia law in the areas of halal food and Islamic finance: the Australian Assistant Treasurer, Nick Sherry, it is claimed, has ‘pledged’ to amend tax laws in order to attract more Islamic finance to the country.
• It is inconsistent to rule out introducing sharia law while at the same time encouraging the development of Islamic finance and the government regulation of halal food.
• Although some Muslims believe that sharia is immutable, many Muslim scholars do not agree, and “AFIC takes the position that Islamic law is changeable according to the requirements of
• different places and times, and therefore, suits the values shared by Australian people.”
• A compromised is required between Muslims and Australia:  “Muslims in Australia should accept the Australian values, and Australia should also provide a ‘public sphere’ for Muslims to practice their belief.”  This implies that for Muslims to actively support Australia as a concept, they need the quid pro quo of being provided with  official public recognition of Islam through legal accommodation of sharia law:  “This approach demands a compromise from Islam, which should be open to other values, and also to make a similar demand of Australia. It is not only Australian Muslims who should reconcile these identities, but also all Australians.” This is what the submission called ‘twin tolerations’: the religion tolerates the state and the state tolerates the religion (citing Alfred Stephan).  The submission states ‘It takes two to tango.’

The AFIC submission is a  request for Australian society to offer a kind of legal covering for Islamic sharia to exist in Australian society.  In separate comments, AFIC spokesman advanced further arguments:

• Sharia accommodation is already working well in Britain the the USA.
• If the Government does accommodate, this will prevent ‘extremists’ within Islam from taking over the agenda.
• What is being proposed at present are accommodations to divorce and family law, which will not affect non-Muslim Australians: “This is about personal issues about family, and won’t affect any other Australian,” and “It’s about a system that does not impinge on the rights of any other Australian.”

In a related news story, it has been reported that sharia courts are already functioning in Sydney, Australia.  This is hardly surprising, and only mirrors a  pattern which has been observed all throughout Western nations.

To which I make the following observations:

The Australian Government is wise and sensible to act quickly to reject sharia implementation.  This is consistent with a series of statements made over the past decade by both Labor and Liberal governments.

It is a terrible irony that Muslims use references to the oppressive dhimmi system as an argument for implementing legal apartheid in Western nations.  

The Muslims’ suggestion that accommodating sharia law will combat extremism can be interpreted as a threat:  “If you don’t give us the sharia we want, then you’ll have to deal with the extremists, who will ‘take over’ the agenda of the Islamic community.”  Does this an unstated threat of terrorism?  It is  important not to capitulate to such threats, in which ‘moderates’ exploit the threat of ‘extremism’ to advance their sharia agenda.

Requests for sharia implementation will never end.  No matter how much is granted, more is demanded.  There is hardly an Islamic state in the world that is not troubled with activists demanding stricter sharia observance.  These groups often resort to violence.  So it does not follow that granting more sharia someone mollifies the extremists.  If that were so, then more sharia-compliant societies would have see violence from the extreme sharia advocates.  In fact the opposite is true.  In fact demands for sharia are a slippery slope: the more is given, the more is demanded.  Better to draw a line in the sand now.  The Australian Government is right to take a stand on this issue.

We should have one law for all.  What AFIC is in effect asking for, is for Muslim women to be treated as second-class citizens under Australian law, because they will have less rights in a sharia court considering issues such as divorce and custody, than in a state court.  It is self-serving for Muslim men to argue that Australia must respect the rights of Muslim women to chose live according to sharia law, when sharia gives men such advantages over women.

Islamic law discriminates against Muslims by compelling Muslims to live according to a legal code which their conscience may reject.  For this reason, in 2003, the Grand Chamber of  European Human Rights court upheld the dissolution of the Refah Party in Turkey.  Refah had aimed to install a plurality of legal systems, under which each community would be ruled according to its own religious principles.  The court found that a plurality of legal system is incompatible with human rights.  This was against the European Convention of Human Rights, because the state would thereby compel individual Muslims to live according to religious rules with which they may not personally agree (See Paul Taylor, Freedom of religion: UN and European human rights law and practice, p.315).

Australian authorities should pay careful attention to AFIC’s argument that halal food regulation and sharia finance are examples of accommodation to sharia, and seriously consider limiting the advance of these two practices in our nation, for this very reason.  There is much that could be done.  For example, it should be required for halal-slaughtered meat to be labeled clearly, so that customers may know they are buying the meat of ritually slaughtered animals, especially since part of the price they pay consists of certification fees paid to an Islamic agency.

Australia should monitor and introduce laws to limit the advance of unofficial sharia courts and other sharia practices.  Sharia law, as it applies to family issues, discriminates against women, and is contrary to basic principles of justice and fairness.   For example the state could make it illegal for licensed religious practitioners (who are licensed by the state as marriage celebrants and whose activities receive tax concessions and ) to officiate at religious marriages if these marriages are not also recognized by the state.

A particular issue is the coercion of people to go to sharia courts to settle matters.  The state should explore the introduction of laws which protect the rights of Muslims – specifically and especially women – who choose to live in ways which are not sharia-compliant.  For example if a woman obtains a civil divorce, she should not be subject to unfair discrimination and intimidation from other Muslims because her divorce is not an Islamic one.  Clearly this is a complex area, and there are limits to the ways in which the state should intrude on religious issues, but it does need to protect the rights of individuals to live according to their consciences, without fear.

Australian authorities have been setting a good example to the world through their clear stand against sharia implementation.  However much more could  be done.

Of one thing we can be sure: religious requirements mean that the request for sharia accommodation will not go away, ever.  The challenge is to just keep saying ‘no’.

Mark Durie is the founding director of the Institute for Spiritual Awareness, a Fellow at the Middle East Forum, and a Senior Research Fellow of the Arthur Jeffery Centre for the Study of Islam at the Melbourne School of Theology.