Speaking of Sharia law...
Quote:Sharia law ‘affecting court rulings’
Rebecca Urban
The Australian
12:00AM September 5, 2016
Two Sydney children have been placed into foster care and their 17-year-old brother reluctantly permitted to live with his violent father after their Lebanese-born mother cited “Islamic law” as the reason she was unable to care for them.
In the case highlighting how Australian courts are increasingly having to deal with the fallout from arrangements struck under Islamic, or sharia, law the mother argued religious law prevented her children living with her because her new husband should not be burdened with the responsibility for caring for them.
Sharia law was also invoked in a matter heard in November by the District Court of South Australia, where disagreement over an alleged loan was complicated by the existence of two contracts; one in English referring to a sum of $70,000 plus interest, another handwritten in Farsi that made no mention of interest.
The court heard evidence that under Islamic law lending money in return for interest was forbidden and the second document had been drafted for “religious reasons” to hide the fact interest was being charged.
According to Flinders University academic Hossein Esmaeili, an expert in Islamic and Middle Eastern law, many Australian Muslims distrust the secular legal system, preferring traditional religious oversight of their personal and business affairs.
In a recent paper published in the Flinders Law Journal, Dr Esmaeili argues that there is significant evidence the broad principles of sharia are already being practised covertly by Muslims in Australia.
“While many Muslims in Australia do not support the introduction of sharia law … many follow certain sharia legal principles as part of their religious observances,” he writes.
“These include matters which ordinarily are legal issues in Australia such as inheritance law, wills, paying special taxes, marriage and divorce, and matters relating to personal property, banking and finance.”
Dr Esmaeili says courts’ recognition of certain Islamic laws might help Muslims use Australia’s justice system more effectively and realise it can accommodate some sharia practices.
In one high-profile case heard by a NSW local court and, on appeal, by the Supreme Court, an Islamic prenuptial agreement struck by a Sydney couple was found to be enforceable under the principles of contract law. The court found the husband had initiated separation from his wife and therefore owed her $50,000 in compensation, a sharia dowry. The 2012 case was thought to be the first of its kind in Australia. According to the appeal judge, it raised the issue of the way agreements based on religious or cultural tradition should be dealt with in Australian society.
Dr Esmaeili told The Australian many Westerners associated sharia with harsh punishments and believed it to be incompatible with secular society. But it was, he pointed out, a broad philosophy governing most aspects of a Muslim’s life, ranging from daily rituals such as prayer through to the way they arranged business affairs.
He said aspects of sharia were “problematic”, such as the ancient doctrine of kofr, which separated Muslims and non-Muslims, but few Muslims wanted those applied in Australia. “Australia’s legal system is secular and 99.9 per cent of the community is happy with that, including Muslims,” he said. “It is not that courts here are applying Islamic law, more they are establishing the facts, which may reference Islamic principles.
“And this tends to apply to … the law of contracts, not criminal law, and nor should it.”
In the case of the Sydney children placed in foster care, the Family Court in Parramatta heard the nine- and 14-year-olds had effectively been abandoned by their mother, who divorced their father and later remarried.
Their father, also born in Lebanon, was deemed violent, lacking in parental authority and incapable of attending to the children’s needs. “The mother has completely abrogated her responsibilities as a parent in refusing to have the children live with her and proffering as an excuse that her new husband should not be required to care for another man’s children as it’s contrary to Islamic law,” the 2014 judgment said.
The court ordered the two youngest into state care, to have only supervised contact with either parent.
Dr Esmaeili questioned the mother’s interpretation of Islamic law. “She may have made the claim, but it is not based on Islamic law,” he said.
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