The way to the watering hole
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Cory Bernardi is in full flight, fulminating on one of his pet themes – the danger to Australia posed by Islamic sharia law. “We should not entertain any thought of introducing any aspect of sharia law into Australia. Sharia law is wholly incompatible with the Australian way of life,” the Liberal senator from South Australia rails. Bernardi is leading the charge on several fronts: women who wear the burqa, the “sheikhs and muftis” who advocate Islamic family law, and the Gillard government’s moves to lure the multi-billion-dollar Islamic banking and finance sector to Australia. He invokes the spectre of a parallel legal system that relegates women to second-class citizens and targets homosexuals for hanging. “We need to stop the expansion of fundamentalist Islam in Australia lest we lose the foundation, the essence, the very culture of our great nation.”
Meanwhile, in a tiny office in Lakemba, south-western Sydney, with prayer beads hanging from the bookshelves and Islamic texts stacked to the ceiling, the Muslim minister and police chaplain Sheikh Khalil Chami quietly and methodically administers sharia law. A woman has come in asking to divorce her new husband because he lied about his family, profession and financial circumstances. Divorcing him under Australian law will not be enough, because unless they are divorced under Islamic law he will insist she is still his wife and she’ll be unable to re-marry. Another spurned husband is furious that the cleric agreed to give his wife a divorce against his wishes. Sheikh Chami shakes his head ruefully at the soaring divorce rate – 36%, he says – among Muslim Australians. Divorce requests make up the bulk of his work, and 49 out of 50 are initiated by women. “It’s because of the style of the life now, a woman doesn’t need a man to be her boss. One lady told me ‘I don’t want to lick the shoes of a man – why should I? He’s not better than me.’ Here a woman doesn’t need a husband to look after her. She can work and the government takes care of her security, so why should she have to live a miserable life?”
Contrary to popular belief, there are many grounds on which a Muslim woman can seek a divorce: if her husband abandons, neglects or fails to provide for her, financially or sexually; if he is cruel or abusive, or disposes of her property; if he is imprisoned or insane, or has leprosy or venereal disease; or if he doesn’t treat her as well as his other wives. In many Muslim countries women are unable to enforce these rights, but in Australia Sheikh Chami says 99% of women who want a divorce get it, usually to their husbands’ dismay. “Men don’t understand it,” he shrugs. “They still think they’re the kings of their home.”
Sheikh Chami’s Islamic Welfare Centre in Lakemba’s Haldon Street is one of dozens of shopfronts, mosques and offices around Australia where imams and Muslim scholars are busily dispensing sharia law – with no sign yet that Australian civilisation is about to crumble. There are no adulterers being stoned or thieves with severed hands, just thousands of Muslims managing their personal and financial issues in accordance with both their religious beliefs and Australian law.
“When people hear the word ‘sharia’ they only think of the punishments, as if Muslims are only concerned with punishing people, chopping off hands and stoning people,” says the secretary of the Australian Islamic Mission, Siddiq Buckley. “Of course that is part of sharia but it’s only a very small part of it.” He hastens to add that no one is suggesting the draconian hudud punishment laws be added to the raft of sharia regulations used in Australia.
“There are practical examples of [sharia] here already. We have Muslim schools, mosques, funeral parlours, shops and businesses. We’ve got abattoirs, Islamic charities, Islamic financial institutions. There are so many things – halal meals served on airlines. This is all part of sharia,” says Buckley.
Despite this, any suggestion to expand or legally recognise elements of Islamic law in Australia provokes wanton alarm, exemplified by Cory Bernardi and echoed by talkback radio callers across the country. We saw this in March 2010 when the president of the Australian Islamic Mission, Dr Zachariah Matthews, suggested during an open day at the Lakemba Mosque that aspects of sharia, such as Muslim family laws, should be given legal recognition. And we are seeing it again, amid moves by the federal government to amend financial and taxation laws to facilitate sharia-compliant banking and finance in Australia.
There is doubtless a streak of ignorance and hysteria that flares whenever these issues are raised. But there are also deep-seated and legitimate concerns about the separation of Church and State, the impact on Muslim Australian women, the role of religious clerics with no formal legal training, and the potential of a parallel legal system that could undermine the legal equality fundamental to the rule of law. The same worries have fuelled bitter debates in other western countries, such as the UK and Canada. “We haven’t yet had a debate in the way those two countries have; when we do, it needs to be a genuine dialogue,” says the Sydney lawyer Ghena Krayem, who is completing a PhD on Islamic family law in Australia.
Sharia is an Arabic word meaning ‘way’ or ‘path’, which originally meant ‘the way to the watering hole’. For Muslims, it means the path to Allah and a virtuous life, based on the edicts of the Prophet Mohammed set out in the Koran, and his sayings and deeds as recorded in the body of knowledge known as the Sunna. Sharia governs every aspect of a Muslim’s life, from food, hygiene, sexuality and family to politics, banking and business.
“The objectives of sharia are to protect five things – religion, life, our progeny, human dignity and property. This is what sharia seeks to achieve,” says the secretary of the Australian National Imams’ Council, Sheikh Mohamadu Saleem.
Strong anecdotal evidence suggests Australia’s Muslim population – 400,000 and growing (about 40% of whom were born here) – are increasingly turning to sharia to resolve their affairs in areas such as marriage, divorce, custody and inheritance. “Regardless of their religiosity, even if they have never walked into a mosque in their lives, and don’t really pray or do any outwardly religious things, when it comes to marriage and divorce they think it’s important to go to a mosque or imam,” says Krayem. Marriage and family are central to the Islamic faith, so “they want to have someone there to give it that religious blessing.”
The research suggests most Muslims marry under both Islamic and Australian secular law. That’s the straightforward part. Divorce is much more tricky, at least for the wife. A Muslim man can end his marriage simply by announcing “I divorce you” three times, a practice known as talaq. In theory, most jurists say this should be done according to strict guidelines, including that the three pronouncements should occur three months apart and at a time when the woman is not menstruating and the couple have not had sex. In practice, however, many men think it’s enough to simply say “I divorce you” three times in a row to end their marriage, whether the wife likes it or not.
A woman, on the other hand, must go to an imam and persuade him she has valid grounds for divorce. In many Muslim communities women have no power to exercise this right. In Australia they do, though it cuts both ways. “It can work for some women if they need the imam to pressure the husband, but for other women the husband might pressure the imam,” says Anisa Buckley, who is finishing a PhD on Muslim women and divorce at the University of Melbourne. “A lot of imams want to help women but sometimes they can’t say what they really want to say because they still have to appease the wider community, and in most cases that means men. If a woman’s husband is on the board of the local mosque, the imams are stuck, their job is on the line.”
Both researchers say women persevere with the Islamic system because it’s important to their beliefs, although some resort to the civil courts. “A lot of the literature draws this picture of Muslim women as really vulnerable and depressed, and I’ve no doubt some of them are, but to paint this whole group of women this way is to do them a great disservice, because they are exercising a great deal of agency in this process,” says Krayem.
Like any breakup, the results can be heartbreaking. A Muslim man who divorces his wife is supposed to give her a financial settlement but many ignore this; while a woman who seeks a divorce against her husband’s wishes has no financial rights and, worse still, has to pay back the dowry he paid when they married, which may amount to tens, or even hundreds, of thousands of dollars. Men can use this to effectively blackmail their wives, either to stay in the marriage or to exchange the debt for custody of the children. If the wife re-marries, the husband has control over whom the children live with. While such provisions may be offensive to other Australians, Sheikh Chami says devout Muslims accept them simply because “it’s the law of God.”
The same applies to polygamy, which, despite its illegality, is quite common, the sheikh says. “I know one person – he has three wives, not two. I know many people who have two women and the women are happy with it, they don’t complain.” Sheikh Chami says he will not endorse multiple marriages in Australia himself, because they are tolerated but not encouraged in the Koran, but a man wanting to take a second wife can readily find someone to approve it. “If I don’t want to do it, another imam will do it.”
Krayem believes the position of women could be strengthened if the system – which is currently ad hoc, arbitrary, opaque and unregulated – was formalised under Australian law. A legalised process could enshrine rights that many women don’t even know they have under Islam, such as a pre-marital marriage contract that can stipulate a whole range of provisions including as-of-right divorce, the freedom to work, study or travel, or exemption from housework.
“What is needed in terms of family law is not recognition of sharia per se – whatever that means – but a dispute resolution process that is useful to the Muslim community and is sensitive to their needs,” says Krayem.
Some Islamic organisations have been vocal in advocating such a move. The Australian Islamic Mission argues Muslim family law could function in the same way as the Jewish Beth Din court, which adjudicates on personal, business and community issues, or the Indigenous courts set up for Aborigines and Torres Strait Islanders. Siddiq Buckley says it could work under the mediation set-up already in place: “We have mediation centres already in Australia where agreements are presented to the courts, and the courts say ‘thank you very much’ because it saves them time, resources and money.”
An informal system along these lines operates in Victoria, under the auspices of the Australian National Imams’ Council, an umbrella group of Islamic clerics. Mohamadu Saleem, who has a masters degree in Islamic jurisprudence, presides over a panel of four or five sheikhs. “We have a very established system where the husband and wife have the option of applying for a family member or an imam to act for them. It’s an alternative dispute resolution system,” says Sheikh Saleem.
He cites a case where a woman whose husband had withheld money she was entitled to was ordered to pay her 50% of his assets, and a dispute between a businessman and a mosque, where the imams mediated a $50,000 settlement that was subsequently endorsed by a civil court. On family matters, Sheikh Saleem says, his panel believes strongly that women should get justice, and that the welfare of children should be paramount.
The Imams’ Council supports a move to cement its system in Australian law. “Naming the court in English as a sharia court is a misnomer, it’s not a sharia court, it’s a court of arbitration on family matters,” says Sheikh Saleem. “It shouldn’t be construed as Muslims taking over Australia. That will never happen.”
Perhaps surprisingly, the idea enjoys some backing in secular legal circles. One supporter is Robin Inglis, chief executive of the community-based Fitzroy Legal Service in Melbourne’s northern suburbs, which are home to a substantial Muslim population. He says Islamic courts “would fill a really important need and would be a win–win situation”. Inglis says the ideal of equality before the law is fine in principle but rarely achieved in practice, as minority groups such as Muslims often find the civil court system daunting, inaccessible, prohibitively expensive and incomprehensible. “We’re not trying to argue that sharia courts or sharia law are some sort of utopia or panacea, but the notion of trying to use the strength and expertise of particular communities to enrich how the Australian legal system functions is really worth talking about. I don’t see it as undermining Australian law or the international laws we’re signed up to.”
However, within the Muslim community, it’s a deeply polarising issue. Proponents of sharia are often condemned for fuelling hostility towards the Muslim community, while opponents are attacked if they seem to question or criticise Islamic law. The Islamic Council of Victoria was so convulsed by a controversy that erupted after one of its board members advocated sharia courts in 2009 that it won’t even discuss the matter, although an insider confirms it is “completely opposed in any shape or form” to legal recognition of sharia law.
One outspoken opponent organisation is the Islamic Women’s Welfare Council of Victoria. “Our experience in Australia is that when this proposition is made, it’s made to serve the interests of a small group of conservative men, particularly as it relates to matters of family and relationships,” says the council’s executive director, Joumanah El Matrah. “Muslim understanding and day-to-day ethics around relationships have changed, so this tradition of imitating practices formulated in the time of the Prophet Mohammed – I don’t think that is acceptable to a vast majority of Muslims now.”
El Matrah points to the British experience: in the 1980s, the government refused to recognise Islamic family law, for fear it would violate the rights of women. So Muslim activists established the Islamic Sharia Council to operate their own family courts. A 2009 report by an independent think tank, Civitas, found at least 85 sharia tribunals operating across the UK, including 13 run by the Sharia Council (which had made more than 7000 rulings) and five run by the Muslim Arbitration Tribunal, whose rulings are enforceable under the British Arbitration Act.
A series of fatwahs, or religious rulings, on the Sharia Council’s website provide a flavour of its approach. A female medical student asking whether she can touch male patients is advised that after graduating she should “just treat the women”. A woman asking why her testimony is worth half that of a man under Islamic law is told: “Man’s mind is uni-focal while the women’s mind is multi-focal”; a man with a task “may not be distracted by anything”, while “a woman may be busy in kitchen work and she will be easily alert to a phone buzzer or her infant’s cry from the cradle … Thus she has got a very praiseworthy character but that is not so good for a case of testimony, which requires more attention and concentration.” As for why men have the upper hand in divorce: “The women are kind-hearted human beings who are governed by their emotions [whereas] … man is governed by his mind … He would think twice but more than that before uttering the word talaq (divorce).”
Supporters say some Muslim women prefer the sharia tribunals to civil courts, where they encounter racism and bigotry, and where it takes longer to get a divorce. Najma Ebrahim, a former co-ordinator at the Muslim Women’s Helpline, says the Sharia Council provides a vital service to women, especially on divorce. “Her faith – her fate – is important to her, so when she goes to the council and gets that decision, at least for her she knows she is not doing something wrong,” she told the BBC. The Times reports that 5% of cases before the sharia courts are brought by non-Muslims who find them easier to use than the English legal system.
However the courts have been repeatedly condemned by human rights campaigners and women’s groups. The Civitas study says they operate in “an institutionalized atmosphere of intimidation”, while the House of Lords has ruled they are “arbitrary and discriminatory”. A report released in June 2010, ‘Sharia Law in Britain: A Threat to One Law for All and Equal Rights’, says the religious courts are “incompatible with human rights” and their implementation of marriage, divorce and child custody laws are “a cornerstone in the subjugation of women”. The study cites one case where a woman who went to the council for mediation reported that the judge told her to “listen to her husband, otherwise she would burn in hell”. Further cases cited in the study include ones where abusive fathers have won custody of their children and violent husbands have been advised to take anger management courses.
Critics note there is no regulation or monitoring of the courts, no control over appointment of ‘judges’, often no legal advice for clients, and no right of appeal. The chair of the Council of Ex-Muslims in Britain, Fariborz Pooya, says Britain is “outsourcing the legal system to Islamic groups”, which is “a betrayal of the rights of our most vulnerable citizens”. The One Law for All campaign is pushing to have the Islamic courts outlawed.
Australian advocates stress they are not pushing for formal sharia courts, but rather a recognised alternative dispute resolution system for Muslims who wish to resolve their affairs according to their religious beliefs. They admit a lot of preparatory work would need to be done, chiefly professional training for those who would administer the system. “The imams need to be trained from an Australian legal point of view,” says Siddiq Buckley. “They have come in with religious training but they don’t understand very well how Australian legal institutions operate and how the law works. So we’d need to run a lot of education courses to get the imams up to speed.”
But the Australian Islamic Mission faces an uphill battle winning community, let alone political or public, support. “We simply don’t have sufficient scholarship in Australia,” says Joumanah El Matrah. “To bring in an alternative process for Muslims is really not recognising their difference, but severing them from the rest of the state.”
Less divisive is the push by the Gillard government to reform financial and taxation laws to facilitate Islamic banking and finance in Australia. Following a recommendation by the 2009 Johnson report, ‘Australia as a Financial Centre: Building on our Strengths’, the government asked the Board of Taxation to review the tax treatment of Islamic finance products to remove existing impediments to their use. The aim is to help Australia secure a share of the booming global market for Islamic financial services, which is worth more than one trillion dollars annually.
“There’s billions of petro-dollars being pumped into western countries,” says Chaaban Omran, CEO of Crescent Investments Australasia, who was part of an Austrade delegation to the Middle East in April. “There’s a lot of liquidity in the Middle East, a lot of cash, and that cash will never come to Australian shores until they know the deals they do here will be done according to Islamic finance.”
Islamic finance spurns the buying and selling of cash and the charging of interest, which is condemned as “usury” in the Koran. Instead it relies on trading in assets and commodities, profit and loss sharing, and leasing arrangements. When buying a house, for example, a Muslim man wishing to comply with sharia would have an investment firm buy the house for him and then lease it back over a period of 25 years, after which it would be transferred into his name.
A discussion paper by the Board of Taxation refers to five main features of Islamic economics, as set out by market intelligence organisation Standard & Poor’s: interest must not be charged; uncertainty in contractual terms is forbidden; financing of industries deemed unlawful by sharia – such as weapons, pork or gambling – is prohibited; parties to a financial transaction must share in the risks and rewards; and each transaction must be based on a tangible, identifiable asset. Because it is based on trading in real assets, Islamic finance is inherently stable, as demonstrated during the global financial crisis, which was sparked in part by predatory lending practices forbidden in Islam. Omran says that while the Dow Jones Global Index fell 40%, the Islamic Market Index showed a positive return.
The Board of Taxation’s paper points out that sharia-compliant investment has potentially broad appeal because of its “ethical character and financial stability”. Dr Abul Jalaluddin, a director of the Muslim Community Co-operative (Australia), says amending financial and taxation laws to facilitate Islamic finance here could have huge benefits for Australia. “If you look at the enormity of the Islamic finance industry worldwide, if you only get a little slice of it that will be into the hundreds of billions of dollars.”
Cory Bernardi’s claim that Islamic banking and finance must be resisted because it is “incompatible with western life and values” has been given short shrift in Canberra, even within his own party. Bill Shorten, Assistant Treasurer and Minister for Financial Services and Superannuation, says “Islamic finance is a rapidly growing part of the global financial system and Australia is in an excellent position to capitalise on that growth.”
Muslim activists are heartened that, at least in this respect, Australians are becoming more open to the potential benefits of sharia law, and hope this concession won’t be the last. “Muslims aren’t going to go anywhere, just because people say ‘why don’t you go home?’,” says Siddiq Buckley. “This is home. And Australian Muslims have the same right to influence the government as anyone else.”