In a related news story, America's leading expert on Sharia and how it relates to U.S. law, David Yerushalmi, reveals the results of an extensive study conducted by the Center for Security Policy, which concludes that Sharia is already being used in 23 states, even when it goes explicitly against the Constitution or state law:
New Study Finds Shariah Law Involved in Court Cases in 23 States CSP
Washington, DC, May 17, 2011 - The Center for Security Policy today released an in-depth study-- Shariah Law and American State Courts: An Assessment of State Appellate Court Cases. The study evaluates 50 appellate court cases from 23 states that involve conflicts between Shariah (Islamic law) and American state law. The analysis finds that Shariah has been applied or formally recognized in state court decisions, in conflict with the Constitution and state public policy.
Some commentators have tried to minimize this problem, claiming, as an editorialin yesterday’s Los Angeles Times put it that, “…There is scant evidence that American judges are resolving cases on the basis of shariah.” To the contrary, our study identified 50 significant cases just from the small sample of appellate court published cases.
Others have asserted with certainty that state court judges will always reject any foreign law, including Shariah law, when it conflicts with the Constitution or state public policy. The Center’s analysis, however, found 15 trial court cases, and 12 appellate court cases, where Shariah was found to be applicable in these particular cases.
The facts are the facts: some judges are making decisions deferring to Shariah law even when those decisions conflict with constitutional protections. Read the full article, with links to the study.
With this alarming study reminding us of how urgent the matter is, we now turn to Dr. Durie's article, which describes signs of hope and a sound method for liberal, western democrcies to reject Sharia implementation:
Australia Gets it Right on Sharia Implementation
The Australian Government is holding a national inquiry into multiculturalism. In relation to this, The Australian newspaper reported on 17 May 2011 that the Australian Federation of Islamic Councils (AFIC) has requested the introduction of Sharia law under the umbrella of multiculturalism (the AFIC submission can be downloaded here: other submissions can be found here).
In response to the AFIC submission, Australian Attorney-General, Robert McClelland has stated that:
- "Sharia law has no place in the Australian legal system."
- "As our citizenship pledge makes clear, coming to Australia means obeying Australian laws and upholding Australian values."
- "Australia's brand of multiculturalism promotes integration. If there is any inconsistency between cultural values and the rule of law, then Australian law wins out."
- "People who migrate to Australia do so because of the fact we have a free, open and tolerant society where men and women are equal before the law irrespective of race, religious or cultural background."
- "Indeed, all applicants for citizenship swear collective allegiance to the people of Australia, and undertake to respect our customs and abide by our laws. The values underpinning those principles will not be changing."
Arguments used by the Federation of Islamic Councils for accommodating sharia law include:
- Islam itself advocates legal pluralism, with each religious community following its own laws.
- Islam allows a place for customs or cultural practices, provided that they do not conflict with fundamental requirements of Islam.
- The dhimmi system under the Ottomans allowed non-Muslims to be governed by their own law, giving them power and dignity in their own right.
- Although modern scholars reject the dhimmi system as unjust, Muslims in the West are worse off thandhimmis, because they are compelled to live under Western law and are not granted their own 'Millet' or officially recognized ethno-religious community.
- Islamic law is part of Muslims' culture, so multiculturalism should provide a place for Islamic law.
- The Archbishop of Canterbury and Lord Chief Justice of England have both endorsed religious pluralism through accommodating sharia law.
- The Australian Government already actively supports accommodation to sharia law in the areas of halal food and Islamic finance. It is claimed that the Australian Assistant Treasurer, Nick Sherry has 'pledged' to amend tax laws in order to attract more Islamic finance to the country.
- It is inconsistent to rule out introducing sharia law while at the same time encouraging the development of Islamic finance and the government regulation of halal food.
- Although some Muslims believe that sharia is immutable, many Muslim scholars do not agree, and "AFIC takes the position that Islamic law is changeable according to the requirements of
different places and times, and therefore, suits the values shared by Australian people." Thus an adapted sharia can be included under the covering of Australian law. - A compromise is required between Muslims and Australia: "Muslims in Australia should accept the Australian values, and Australia should also provide a 'public sphere' for Muslims to practice their belief." What this means is that for Muslims to actively support Australia as a concept, they need the quid pro quo of official public recognition of Islam through legal accommodation of sharia law: "This approach demands a compromise from Islam, which should be open to other values, and also to make a similar demand of Australia. It is not only Australian Muslims who should reconcile these identities, but also all Australians." This is what the submission called 'twin tolerations': the religion tolerates the state and the state tolerates the religion (citing Alfred Stephan). The AFIC submission states: 'It takes two to tango.'
In separate comments, AFIC spokesman advanced further arguments:
- Sharia accommodation is already working well in Britain the the USA.
- If the Government does accommodate, this will prevent 'extremists' within Islam from taking over the agenda of the Muslim community.
- What is being proposed at present are accommodations to divorce and family law, which will not affect non-Muslim Australians: "This is about personal issues about family, and won't affect any other Australian," and "It's about a system that does not impinge on the rights of any other Australian."
To which I make the following observations:
The Australian Government is wise and sensible to act quickly to reject sharia implementation. This is consistent with a series of public statements made over the past decade by both Labor and Liberal governments.
It is a terrible irony that Muslims use references to the oppressive dhimmi system as an argument for implementing legal apartheid in Western nations.
The Muslims' suggestion that accommodating sharia law will combat extremism can be interpreted as a threat. The implication arises that if Australians don't give Muslims the sharia they want, then Australia will have to deal with the extremists instead, who will 'take over' the agenda of the Islamic community. Does this imply a threat of terrorism? It is important not to capitulate to such threats, in which 'moderates' exploit the threat of 'extremism' to advance their sharia agenda.
Requests for sharia implementation will never end. No matter how much is granted, more is demanded. There is hardly an Islamic state in the world which is not troubled with activists demanding stricter sharia observance. Such groups often resort to violence. So it does not follow that granting more sharia somehow mollifies the extremists. If that were so, more sharia-compliant societies would have less violence from the advocates of extreme sharia. In fact the opposite is true. Demands for sharia are a slippery slope: the more is given, the more is demanded. Better to draw a line in the sand now. The Australian Government is right to take a stand on this issue.
We should have one law for all. What AFIC in effect is asking, is for Muslim women to be treated as second-class citizens under Australian law, because they will have less rights in a sharia court when pursuing issues such as divorce and custody, than in a state court. It is self-serving for Muslim men to argue that Australia must respect the rights of Muslim women to live according to the dictates of sharia law, when sharia law gives men considerable legal advantages over women.
Islamic law discriminates against Muslims by compelling Muslims to live according to a legal code which their conscience may reject. For this reason, in 2003 the Grand Chamber of the European Human Rights court upheld the dissolution of the Refah Party in Turkey. Refah had aimed to install a plurality of legal systems, under which each community would be ruled according to its own religious principles. The court found that a plurality of legal systems is incompatible with human rights. Legal pluralism was found to be inconsistent with the European Convention of Human Rights, because the state would thereby compel individual Muslims to live according to religious rules with which they may not personally agree (see Paul Taylor, Freedom of religion: UN and European human rights law and practice, p.315).
Food and finance are the thin edge of the sharia wedge. Australian authorities should pay careful attention to AFIC's argument that halal food regulation and sharia finance are examples of accommodation to sharia, and seriously consider limiting the advance of these two practices in our nation for this very reason. There is much that could be done. For example, it should be required for halal-slaughtered meat to be labeled clearly in supermarkets, so that customers may know they are buying the meat of ritually slaughtered animals, especially since part of the price they pay for halal products consists of a certification fee paid to an Islamic agency.
Australia should introduce laws to limit the advance of unofficial sharia courts and other sharia practices. They should also carefully monitor the extent of such practices. Sharia law, as it applies to family issues, discriminates against women, and is contrary to basic principles of justice and fairness. For example the state could make it illegal for licensed religious practitioners (many of whom are authorized by the state as marriage celebrants and whose activities receive tax concessions) to officiate at religious marriages if these marriages are not also recognized by the state. This would discourage the practice of polygamous unions which are not recognized by the state. It makes no sense for the state to license religious practitioners who are thumbing their noses at the government by conducting legally unrecognized polygamous marriage ceremonies on the side. The state cannot restrict private religious practices, but it should be more discerning about who receives the privilege of legal recognition, including tax privileges.
A particular issue is the coercion of people to go to sharia courts to settle matters. The state should explore the introduction of laws which protect the rights of Muslims - specifically and especially women - who choose to live in ways which are not sharia-compliant. For example, if a woman obtains a civil divorce, she should not be subject to unfair discrimination or intimidation from other Muslims because her divorce is not an Islamic one. Clearly this is a complex area, and there are limits to the ways in which the state can intrude on religious practices, but there is also a need to protect the rights of individuals to live according to their consciences, without fear. This includes the right of Muslims NOT to live according to sharia law.
Australian leaders have been setting a good example to the world through their clear stand against sharia implementation. However much more could be done.
Of one thing we can be sure: the religious requirements of Islam mean that requests for sharia accommodation will not go away, ever. The challenge is to just keep saying 'no'.
