Friday, October 07, 2011

Pushing for Sharia in Australia

Ummah Oz

Leftists and “moderate” Muslims like to mock critics of Islam when they talk about the encroachment of sharia in Western countries. The bien-pensants pooh-pooh the idea that Islamic law is stealthily insinuating itself into our jurisprudence. “Ah, those paranoid Islamophobes! How foolish they are!”

Yet the emergence of sharia in Western countries is quite real. In Britain, for example, it is out in the open; the UK has established officially-recognized sharia courts. By way of contrast, the application of Islamic law in Germany is quiet and not officially acknowledged, yet lawmakers and law-enforcement officials know that many civil disputes, and even criminal complaints, are being settled by imams in Islamic enclaves without ever reaching a police station or a courtroom. When pressed, some police officials and judges will even admit that they are glad to have the extra workload taken off their hands.

Australia is not yet as thoroughly Islamized as Western Europe, but it seems to be following the British model. According to The Australian, there is a move afoot to construct an amalgam of sharia and Australian law for Muslims in Australia:

Local Islamists Draw on British Success in Bid for Sharia Law

THE push to recognise sharia law in Australia has entered an ambitious new phase that draws on the tactics that have handed success to Islamists in Britain.

The latest move, under the guise of helping Muslim women, would give sharia law priority over Australian divorce law. If enacted, this plan would prevent Muslims from obtaining a civil divorce unless they first divorce under Islamic law. The plan, published by the Alternative Law Journal, would require Muslims to appear first before a proposed Islamic divorce council made up of imams and lawyers who are familiar with sharia and Australian law. This tribunal would “assess the credibility” of divorce applications from an Islamic perspective. Divorce decrees from this proposed council would be recognised under sharia law and become binding under civil law after approval by a civil court.

The proposed tribunal would be problematic, to say the least. Suppose a woman had been pressured into an arranged marriage at the age of sixteen — which is routine in many Muslim communities — and then later decided that she did not believe in Allah, and no longer considered herself to be a Muslim. If she wanted to divorce her husband, the state would force her back into her religion. It would insist that because she had once been a Muslim, she must always be a Muslim — a key tenet of sharia law in itself. She could not gain a divorce without the consent of a sharia “tribunal”. There would indeed be “compulsion in religion”.

As in so many instances of sharia as it applies to women, this dangerous idea is being sold as a reform that will help protect the rights of women:
These are the key recommendations from an article in the journal that says its goal is to help Muslim women avoid improper pressure from former husbands who refuse to grant them a religious divorce. “By establishing the council and formalising the process, women would be able to present their case under fair and culturally sensitive conditions,” solicitor and migration agent Ismail Essof says. “A process which is recognised under Australian law would mitigate some of the abuses currently permitted.”

By giving indirect legal recognition to a tribunal applying sharia law, Mr Essof’s plan adopts one of the main techniques to have helped sharia law become part of Britain’s legal framework…


In the Alternative Law Journal, Mr Essof makes clear he has been influenced by the British response to sharia law and legal pluralism. His article quotes Britain’s Lord Chief Justice Lord Phillips as saying: “There is no reason why sharia principles or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution.”

No reason, that is, except that the principles of sharia violate the constitutions of all Western nations. They do not offer women equal protection under the law.

In Modern Multicultural Australia, however, race and ethnicity trump the common law. And, in an innovation promoted by the Organization of Islamic Cooperation, a religion, especially Islam, must be considered functionally the same as a race.

That ties up the loose ends nicely, and all that remains is a nice warm soothing slathering of “pluralism” to make the bitter medicine of gender apartheid go down more easily:

He endorses the concept of legal pluralism, asserting that it has been advanced in many democracies, “Australia included”.

The skeptical author of the article then points out that the modus operandi of the tribunals actually contradicts statements made by the highest-ranking judicial official in Australia:

This assertion by Mr Essof might seem odd when compared to the clear and repeated statements by federal Attorney-General Robert McClelland that Australian law wins out whenever there is a conflict between cultural values and the rule of law. Yet it is easy to see how Mr Essof could conclude legal pluralism has been embraced by Australia, just as it has been in Britain.

De facto sharia is already being practiced in Australia, just as it is in Germany:

Recent research by legal academics Ann Black and Kerrie Sadiq, published in the University of NSW Law Journal, found sharia law had already become a shadow legal system in Australia, endorsing polygamous and under-age marriages that are outlawed under the Marriage Act.

For the politically correct establishment, the clincher for the deal is the fact that sharia tribunals will purportedly resemble a legal mechanism set up for Aborigines. No one may question Aboriginal institutions, so Muslim parallels must also be permitted:

Mr Essof points to the fact that special sentencing courts for Aborigines, known as circle sentencing courts, are in place. He says they are “a contemporary example of the application of legal pluralism”. In the context of his plan for a sharia divorce tribunal, Mr Essof says legal pluralism means “a holistic approach to the law which allows minority groups to find recourse and cultural significance”. He writes that he does not advocate a separate legal system for Muslims “but rather incorporation of the single aspect of Islamic divorce law”.

And the failure to provide sharia for Muslims would be damaging to their “communities” — which must therefore not be Australian communities at all:

“Failure to reconcile Islamic divorce law and Australian civil divorce would undermine court processes and have a negative impact on local Muslim communities in Australia,” he says.

Strangely enough, Australian Muslims are offering some of the strongest resistance to the proposal:

Missing from Mr Essof’s argument is any reference to the backlash from Australian Muslims when Australian Federation of Islamic Councils president Ikebal Patel called for Australia to compromise with Islam and embrace legal pluralism. Mr Patel said later that he supported secular law, and it had been a mistake to even mention legal pluralism.

One can imagine that some Muslim Australians — there must be quite a few of them from places like Pakistan or Saudi Arabia — are relieved to be out from under the boot heel of traditional Islam, and appreciate the freedom that Australia offers them. But the liberal gutmenschen and their Muslim allies are determined to bring Karachi and Kandahar to Canberra:

Mr Essof makes it clear that if his scheme takes root, the jurisdiction of the proposed sharia divorce tribunal could grow.” If the system proved successful and established grounds to look at addressing other areas of family dispute once a marriage has broken down, then the council could be given formal recognition in addressing these disputes as well, acting as an arbitrator, with the courts then providing a legally binding approval,” he says.

This is the future of the entire West if we do not open our eyes, raise our voices, and insist that there be only one law of the land. As Islamic enclaves increase in size, so will the application of Islamic law within their boundaries.

This, in effect, means lawlessness, since sharia is not “law” in the sense that anyone steeped in European legal traditions would recognize.

Hat tip: JP.


LAW Wells said...

In a curious twist, Justice Dowd basically argued the same thing in his lecture, only regarding succession laws as his example instead of divorce.

One law for all.

ZZMike said...

"Section 116 [of the Australian Constitution] establishes what is often called "freedom of religion", by forbidding the Commonwealth from making any law for the establishment of a religion, imposing any religious observance, or prohibiting the exercise of a religion, or religious discrimination for public office."

One could say that coming into a country is like joining a club: if you don't like the rules, don't join.

Egghead said...

"They do not offer women equal protection under the law."

More importantly, Sharia Law omits to offer infidel non-Muslims equal protection under the law.

So, in establishing the precedent that Sharia Law is acceptable and combining that with the widely held fallacy that democracy sets the law, when Muslims are the majority in Western nations, Muslims will simply "vote" to have everyone ruled by Sharia Law - citing both democracy and Western precedent - in addition to the will of Allah.

RonaldB said...

Several US states have attempted to pass anti-Sharia legislation. The Islamic organizations muddy the waters by saying Sharia courts will simply make religious-based decisions in the disputes where both parties wish to be judged by Islamic law.

The huge problem is that the Sharia decisions are expected to be enforced by civil courts. Unfortunately, the Jewish bet din courts have set a precedence for secular enforcement of the decision of a religious tribunal.

If both parties are agreeable to the imposition of Sharia rulings, there should be no need for civil authority. However, the Muslims are obviously angling for officially-sanctioned Sharia rulings which will be binding on the participants/victims. A civil society must very jealously guard its core functions, including law-enforcement. Sharia court decisions must play no part whatsoever in the decisions of a real court. Furthermore, participation in a Sharia court dispute must in no way prejudice the rights of the disputants to bring suit outside of the decision. In other words, the Sharia ruling should carry no legal weight whatsoever.

One real problem is that a dense Muslim community will always include violent enforcement of Sharia compliance. Women going against their husbands have to worry about more than harsh glares from their families. For this reason, Sharia courts involving domestic disputes should be simply illegal. An imam may offer counseling based on his interpretation of Sharia law, but it must have no aspect of a court proceeding, and certainly not a hint of enforcement measures.

Just as the Jewish Bet Din courts in New York are a bad precedent, the officially-recognized Aborigine court system in Australia is a bad precedent. But, in both cases, the precedent can be maintained without generalizing it. Slightly inconsistent, but as Emerson said "consistency is the hobgoblin of small minds."

EscapeVelocity said...

but as Emerson said "consistency is the hobgoblin of small minds."

Reminds me of Ron Paul.