Sharia Law

Although this speech provoked opposition from some other members of Britain’s legal, political and religious communities (including some Muslim groups), the Lord Chief Justice of Britain came to the Archbishop’s defence by also supporting alternative dispute resolution using Sharia principles. Whether this is the right direction for Australia or whether we should retain the status quo needs consideration and debate. Increasingly, Muslims have been making their homes in secular countries in the West.

Sharia is the moral, legal and religious code followed by all Muslims, but made notorious by extremist groups like Islamic State wanting to implement hardline aspects of Islamic law. Family law and inheritance matters for Muslims are heard in Sharia courts, but non-Muslims take their cases to the civil courts. Some laws apply only to Muslims – in particular those based on Islamic practice – so that non-Muslims may be exempt from laws dealing with prayer, apostasy, fasting during Ramadan, alcohol and pork consumption, provided these acts are done in private. It means that immigrants who have come from such countries to Australia are comfortable with legal pluralism. In our current unofficial system, if a group of Islamic scholars or sole Imams hold themselves out as having legal authority to determine issues of marriage, divorce, custody and inheritance for Muslims, such protections can be missing.

Their religion, Islam, which means submission to God, lays down a comprehensive code for life known as the Sharia, which has laws governing most aspects of a Muslim’s daily life, including detailed laws on family and relationships. Muslims in secular nations still try to live by these laws but at times encounter difficulties when Islamic law is not readily reconciled with state law.

Islam is premised on fairness and doing justice between the parties in terms of the Sharia; however, in a totally unregulated or self-regulated system to govern family law matters, Australian Muslims may be disadvantaged. If the government, in conjunction with representatives of the Muslim community, found common ground that allowed for application of Islamic law by a board of Imams or a Sharia arbitration council or court, the opportunity for regulation and accountability becomes more likely. The issue of whether Australia should give formal legal recognition to Sharia law in resolving family law disputes involving Muslims will be canvassed in this paper.

Debate on this issue has gained currency across common law jurisdictions due to several recent events. One was the legal recognition given to Islamic arbitration in the province of Ontario, Canada, in 2004. Although the enabling sections of the Arbitration Act were subsequently repealed, it did ignite the possibility that within a common law system there could be faith-based dispute resolution for family law and other legal matters. The second event was the Archbishop of Canterbury’s address to the Royal Courts of Justice (Williams, 2008), in which he promoted the concept of Britain becoming a “plural jurisdiction” by accommodating aspects of Sharia law.

The practice of convicting defendants on the basis of confessions alone is particularly worrying in the light of well-documented torture by the police, other forms of pressure exerted on defendants by police, prosecution officials and others, and widespread corruption in the judiciary. Human Rights Watch believes that had Shari’a court judges followed due process and had defendants had full legal representation, many of these death sentences and amputation sentences would never have been passed―especially in view of the safeguards which exist within Shari’a against harsh and unfair sentencing.

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