Ann Black

Accommodating Shariah Law in Australia's Legal System

Early in 2008, the Archbishop of Canterbury asked the legal fraternity in Britain to consider how accommodating the law of the land can, and should be, to religious minorities possessing their own legal and moral codes. This article poses the same question in regard to Australia and responds by exploring existing strategies used by Muslim Australians to navigate through two sets of laws, together with the case for and against official recognition of Shariah law in this country.

Fatwas and surgery: how and why a fatwa may inform a Muslim patient's surgical options

Nowadays, most Australians and New Zealanders know the Arabic word ‘fatwa’ (plural fatawa or fatwas), but for many non-Muslims, it comes with negative connotations. This is because our knowledge of fatwa is derived from the media, which appear to select for their reports the most sensational, or alarming or sometimes quite amusing fatwas, thereby highlighting the difference between the Muslim world and the West. Reported in recent times have been fatwas prohibiting women from studying at Australian tertiary institutions, prohibiting beauty pageants, condemning Danish cartoons deriding the Prophet, decreeing destruction of Bamayan Buddhist statues, prohibiting yoga, allowing child marriage and banning Pokemon in Saudi Arabia. Such reporting sets up a paradigm of ‘unfathomable Muslims’ versus us, the rational westerners. Contrary to public perception, a fatwa has nothing to do with a proclamation of death. This misconception arose because the best known fatwa in the West, issued 20 years ago by Ayatollah Khomeini of Iran, condemned as blasphemy and apostasy the writing and publication of the Satanic Verses. It culminated in a call for ‘all zealous Muslims to execute them [author Salman Rushdie and the publishers] quickly’. This fatwa was controversial for many reasons, and its validity was rejected by other Muslim scholars.

Fatwas: Their Role in Contemporary Secular Australia

In Australia, there has been confusion and misunderstanding surrounding the term ‘fatwa’. This goes both to its meaning and also to the role fatwas fulfil for Muslims, whether in Australia or in other parts of the world. This paper seeks to address both of these issues, first by demystifying fatwa through exploration of the distinctive place the have in Islamic jurisprudence, and second by identifying the methodology used by jurists in ifta (the giving of fatwas), which has enabled Islamic law to be responsive to new developments and contemporary challenges. Given the recent expansion of technological, economic and medical advances and the pattern of migration of Muslims to secular societies, the paper argues that the need for fatwas is in fact increasing as Muslims strive to accommodate Islamic religious requirements within these new environments. The paper surveys the sources of Islamic authority in Australia, concluding that a process of collective ijtihad (independent legal reasoning) would best be suited to the diversity that is the hallmark of Islam in Australia. However, it is stressed that this would not lessen the primacy of Australian law but rather would complement it, as fatwas give guidance to Muslims Australians in the personal, individual and private spheres of life.

Replicating a 'Model of Mutual Respect': Could Singapore's Legal Pluralism Work in Australia?

Like other western nations with a Muslim minority, Australia too is debating the extent to which our government should recognize and make concessions to our small but growing Muslim population. In 2011, the Australian Federation of Islamic Councils made a submission to the government entitled ‘Embracing Australian Values – Maintaining the Right to be Different’, which advocated legal pluralism as the right of all Australians. It argued amongst other things that conflicts, especially ones involving family and inheritance matters, should be resolved according to the law and traditions of ones own religion. This was contentious in a nation where ‘one law for all’ has been the accepted approach for two centuries. It did however give rise to a debate on whether the nation can, or should, formally recognize certain aspects of Islamic law or support the establishment of a Syariah Court or tribunal. One of the models for legal pluralism often advocated is that of Singapore. Like Australia, Singapore has a minority Muslim population and also inherited the common law system during the era of British colonisation. This paper reflects on the pluralism debate in Australia and assesses the strengths and weaknesses of Singapore’s plural model to determine whether it could, or should, be replicated ‘down under’.

Court Ceremonies, Ritual and Symbolism: How Islamic Law and English Common Law are Conceptualised and Apply to an Unlawful Killing

Islamic criminal law as it is practised in several Muslim nations has been condemned as anachronistic, oppressive or unforgiving. Responding to such criticism of Saudi Arabia’s criminal justice in the wake of the trial for the murder of Australian nurse Yvonne Gilford, Dr Ghazi Al-Gosaibi, Saudi Arabia’s ambassador to Britain at the time, simply noted that, ‘each country has a different system that it believes will best achieve justice.’1 How the Islamic criminal system seeks to achieve justice is the focus of this article. In its quest for justice, the Islamic system that Hallaq notes conceives of law ‘not as a means employed in the service of society, but rather in the service of God’2 will take a distinctive path from the common law, which is explored though the lens of a murder trial in Saudi Arabia and in England, the birthplace of each system. The analysis covers the attending ceremonies and ritual that apply to an unlawful killing; how proceedings are initiated; how guilt and innocence are determined; the safeguards for ensuring a just outcome; and the consequences that flow from a determination of guilt.

Ideology and Law: The Impact of the MIB Ideology on Law and Dispute Resolution in the Sultanate of Brunei Darussalam.

Since 1984, the Sultanate of Brunei Darussalam has chartered its post-independence course through its proclaimed ideological compass of MIB (Melayu, Islam, Beraja). All three pillars of MIB - Malay culture, the religion of Islam, and the institution of an absolute Monarchy - are traditional, long standing Bruneian features, which have been expertly crafted in the last two decades to act as the filter by which modernisation and development can occur. As the ideology is all-encompassing, law has not only been one of the vehicles for implementation, but is being shaped to accord with the tenets of MIB. This can be seen in legislation, legal institutions and processes for dispute resolution with the promotion of a more distinctive Malay character as well as a discernible Islamization agenda. The paper explores each of these as well as processes of enacting laws in this Sultanate where, in the absence of an elected democratic parliament, all law emanates from the monarch.