Goodbye to rights under sharia

Civil libertarian Spencer Zifcak and constitutional monarchist David Flint are from opposing sides of the political spectrum. But they are united by a deceptively reasonable push for a form of sharia law in Australia.

These academics recognise what is at stake. If this push succeeds, it could undermine the centuries-old legal settlement that led to the Enlightenment and the rise of Western secular society.

That settlement is the result of a struggle that started almost 900 years ago and that eventually broke the power of the ecclesiastical courts of England.

Church law - in that case Catholic church law - was put in its place by the rising power of the royal courts of justice that enforced the law of the land, not the law of God.

That victory for civil society in England is part of the legal inheritance of Australia, the US and those countries that have embraced the common law.

The latest proposal, by the Federation of Islamic Councils Inc, seeks to reverse that arrangement in at least one critical area: family law. If implemented, a form of "legal pluralism", or legal apartheid, would take root on Australian soil. Public policy debates on family law and other areas covered by sharia would be irrelevant to the entire Muslim community.

Many of the rights bestowed on Muslim women by Australian law would disappear. Decisions on property settlements and the custody of children after the breakdown of a marriage would depend on the religious councils of Islam.

And the content of this proposed Australian form of sharia is uncertain. Ikebal Adam Patel, president of the FICI, has told the federal parliamentary inquiry into the government's new multicultural policy that "Islamic law is part of a Muslim's culture". Therefore, he argues, completely denying any recognition of this law "goes directly against any profession of multiculturalism".

He argues Islamic law can change according to the requirements of different places and times, "and therefore suits the values shared by Australian people".

With luck, this might rule out the introduction of public canings or beheadings under an Australian system of sharia. It also might prevent Australian rape victims being stoned to death, as practised in backward areas of some countries governed by sharia.

But even if Australia's imams design a moderate form of sharia, one that is perfectly attuned with Australian values, the entire concept is still riddled with problems.

The reason this proposal has united Zifcak and Flint is because the application of sharia would mean winding back the rule of law.

At its core, this principle means that the normal law, applied in the normal courts, should apply to everyone equally. And the normal law is made by parliament and the judiciary, not priests or imams.

Zifcak, who is president of Liberty Victoria, says that although this proposal is focused on Islamic law, it might be followed by others who believe they, too, should be exempted from normal law.

"You would create a precedent that opens the gates for an argument for further variations from the universal application of the rule of law. As a general proposition I am opposed to that," says Zifcak, who is also director of legal studies at the Australian Catholic University.

Flint, a former dean of law at the University of Technology, Sydney, is concerned about the adverse effect sharia would have on the secular nature of the Australian polity.

"The state is separate from any of the churches, and particularly so in Australia where we have no established church," he says.

But Flint has another objection.

"Our single law is based, essentially, on Judaeo-Christian values. It was founded on these values," Flint says.

He recognises that those values are increasingly under attack and it is too late to return to what he describes as "full Judaeo-Christian values".

But he is extremely uneasy about embracing a system of law that has grown out of a religion "that had nothing to do with the development of the country".

"The idea that you would impose a completely alien legal system is completely unacceptable.

"It shows the foolishness of the term multicultural; it can mean anything to anyone."

Flint's point about the Judaeo-Christian origin of Australia's law is in line with the views of legal academic Rosalind Croucher, co-author of Law and Religion.

She says the structure of the legal system - including family law - is based on "a secularisation of ideas that were intrinsically founded in religion".

But despite that origin, Croucher points to the secondary status that religious law now enjoys in Australia. She says religious organisations have what she refers to as "an external role" in matters governed by the normal law.

She gives the example of the Catholic Church, which is sometimes asked to perform a religious annulment after a Catholic couple has obtained a divorce under the normal family law.

"If you are of the Roman Catholic faith, the issue of divorce, property settlement and everything else is entirely considered by the court," Croucher says.

"But your personal, moral conscience about whether you can remarry or not may be informed by the involvement of Catholic bodies.

"It's in the personal space, it's not something that can bind a person as a citizen of Australia."

Croucher says the introduction of sharia into the fabric of the law "would be to reverse the pattern of law by hundreds of years".

"People may wish to follow sharia principles in themselves, but that is an entirely different matter to introducing them as principles of law," she says.

Croucher has no problem with Islamic couples putting forward property settlements that have been informed by their understanding of sharia law. But she says it would be an issue of much greater significance if such arrangements were considered binding under the normal law.

Zifcak says the proposal raises many of the same issues that arose during debates over the interaction between Aboriginal customary law and the normal law that applies generally.

He is opposed to anything that would lead to the introduction of sharia unless it were preceded by exhaustive analysis and reports of the kind that accompanied the debate over customary law.

Sharia, in Patel's view, has a long and noble history and has been extensively analysed by Islamic scholars.

But if it were to become a binding form of law within Australia, it would lead inevitably to the destruction of many common law and statutory rights. These rights are among the main reasons many Muslims chose to settle in Australia, a point made yesterday by federal Attorney-General Robert McClelland.

"People who migrate to Australia do so because of the fact we have a free, open and tolerant society where men and woman are equal before the law irrespective of race, religious or cultural background," he says.

"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."

Yet the rights and freedoms that attract migrants to countries governed by the rule of law have not deterred the push for sharia in Europe.

In Sweden, Britain and The Netherlands, Muslim groups have caused considerable controversy by demanding that sharia should govern inheritance, marriage and divorce.

A US WikiLeaks cable shows that a survey conducted by the British Centre for Social Cohesion of 600 Muslim students at 30 universities found 32 per cent supported killing in the name of Islam and 40 per cent wanted sharia law.

Findings by the British Institute for the Study of Civil Society found that unofficial sharia tribunals had issued rulings that might seem at odds with the rights that most British subjects would take for granted.

For example, "no Muslim woman may marry a non-Muslim man unless he converts to Islam and that any children of a woman who does should be taken from her until she marries a Muslim".

Another sharia ruling says "a male child belongs to the father after the age of seven, regardless of circumstances".

The entire debate, according to Flint, is symptomatic of a crippling lack of self-confidence among the Australian governing class about the benefits of parliamentary democracy and the rule of law.

He believes the fact there is even a push for sharia law in Australia reveals a failure to ensure migrant communities have a proper understanding of basic civics.