July 22, 2011
Strict bail conditions imposed ... Tolga Cifci. Photo: Domino Postiglione
The court cases of Tolga Cifci and Wassim Fayad are ready-made for hefty doses of hyperventilation by portions of the media, particularly commercial broadcasters.
They are among four men who allegedly broke into the Silverwater home of Christian Martinez, who, despite his name, is a Muslim.
The media have been full of it, because in allegedly whipping Mr Martinez 40times with an electrical chord for drinking alcohol, the accused are said by the police to have chosen a "particularised usage of religious law".
That is police talk for applying sharia as punishment for some-thing that in our legal system is perfectly legal.
It's doubtful that sharia specifies the use of electrical cables in this sort of retribution, but that might not be the worst of it. Suggestions have emerged "from one local Auburn source" that the victim may have owed money to a number of people. If so, this could be a normal bit of roughing-up to speed the return of outstanding funds – not unknown in Australia or other common law countries as a method of settling debts.
It could be regarded as a form of mediation. (Indeed, a number of former judges-turned-mediators quietly admit that their method to achieve a breakthrough in negotiations is to pick on the weaker of the disputing parties and metaphorically beat them on the head with a rubber hose until they surrender.)
Already, we can identify subtle eliding of western and sharia traditions.
The federal Attorney-General, Robert McClelland, has pronounced that the government "is not considering and will not consider the introduction of any part of sharia into the Australian legal system".
The NSW police commissioner, Andrew Scipione, has also made himself crystal clear: "I've said it before and I'll say it again. There is no place in Australia for sharia law, full stop."
Maybe he should have said "semi-colon", because in the middle of 2009 the then assistant treasurer, Nick Sherry, announced that Australia "should be open to the potential for Islamic finance to operate in Australia". Last year Sherry gave a speech at the Islamic Finance Conference in Melbourne in which he said that Australia was in the fortunate position to be a financial hub in the Asia Pacific region with Islamic finance as its "crucial plank". To that end there was a review of Australian taxation laws so that Islamic financial products and services could be provided on a parity with the other stuff already on offer.
Clearly, the government is keen for Australia to dip into $1.6 trillion worth of Islamic investment.
As academics Ann Black and Kerrie Sadiq write in the University of NSW Law Journal, finance is part of "good sharia law", which has an emphasis on profit sharing instead of charging interest and excluding investment in things contrary to Islamic principles.
If we can made a quid out of adapting our principles to include Islamic methods of finance and investment, then sharia has a welcome place in our system.
On the other hand (a phrase with a special meaning in parts of the Muslim world) Black and Sadiq point to Islamic family law, such as the recognition of polygamy and Muslim divorce, which is regarded as "bad sharia law".
The hudud punishments of hand severing, stoning to death and beating with cables are confined to a few countries, such as Saudi Arabia, Sudan and Iran. As far as we know there is no credible proposal that they be allowed to function in parallel with the Australian legal system, although you wonder when you see Australians screeching at accused persons as they are driven away in police vehicles.
The vast majority of Muslim countries and Muslims have moved on from the middle ages. It was interesting to see a number of Islamic organisations condemn the alcohol-tippling/debt-recovery punishment. Sheikh Taj el-Din al Hilaly, of the Lakemba Mosque, said the attackers should be "assessed for a mental disorder" and those found guilty deported. Guilty of a mental disorder takes our law into uncharted waters, so maybe it's best to say no more about it.
In Britain there are close to 100 sharia tribunals that deal with matters such as domestic relations and inheritance, with appeals to the civil courts.
In Australia, law reform commissions have recommended that aspects of Aboriginal customary law be permitted to function alongside white man's law. The Law Council of Australia welcomes that and, indeed, it has been recognised in the Northern Territory.
Our system of laws is not immune from the the imprecations of Christian fundamentalism, either. For instance, the Reverend Fred Nile is forever trying to impose some sort of Christian sharia on his flock, the people of NSW. Maybe he should be allowed to have his own courts to impose special punishments on prostitutes, gays, and students who skive off from scripture classes.
