Ian Crawshaw
Why the big panic over sharia in Australia? Religious courts go hand in hand with free market democracy and are a heroic bulwark against unaffordable justice and creeping socialist totalitarianism. Let me explain why.
Already there are religious courts in operation in Australia, outside the formal legal process. These courts use ancient religious texts in adjudicating on matters as diverse as divorce, property and business dealings - even the terms relating to a financial loan.
They are the beth din, the religious courts of Australia's Jewish community. The Sydney Beth Din has been operating since 1905, and its decisions are widely respected throughout Australia, New Zealand and Asia.
So what is the big deal about Islamic courts?
What do you think when you hear the word 'sharia'? Cutting off the hands of thieves? While admitting to a twinge of sympathy for such practices, I am bound to point out that there is a difference between sharia law and sharia penal codes - the latter are often cruelly adapted to primitive local cultures.
A sharia court is simply a non-legally binding option for warring parties to go to arbitration for a decision based on mutually agreed terms of reference.
Extra-judiciary arbitration is a fine tradition in the Westminster system of parliamentary democracy. Indeed, in Britain, it is actually enshrined in law with the 1996 Arbitration Act, giving disputing parties the right to approach an impartial tribunal for a decision they are both bound to accept.
There are estimated to be 85 sharia courts operating in Britain, and the kind of cases they hear and adjudicate might surprise the average Western liberal. Sharia courts are not just for the faithful. Telling the imam you have been a good Muslim all your life really doesn't cut any ice.
In a highly publicised British case in 2008, a Muslim owner of a car fleet rental company was in dispute with his non-Muslim, indigenous English (OK, white) business partner. They agreed to go to sharia for arbitration - and the non-Muslim business partner walked away with $70,000 compensation. In a normal court, that compensation would have disappeared in lawyers' fees.
Disputing parties in Australia have the right to a variety of arbitration tribunals. Got a problem with getting the rental bond back? Then off to a rent tribunal with you. Perhaps you are an Aborigine. Apply to have your grievance heard in a customary law court, a circle of elders overseen by a representative of Her Majesty's government of Australia. You might not be able to legally spear your opponent as in the traditional payback, but you get the chance to have the issue settled according to customary Aboriginal law.
So who's afraid of sharia law? Well, you fellows looking to dissolve your civil partnership after years of blissful gay marriage had best not go to a sharia court for a sensible decision. But don't go to an Australian court, either, because they don't recognise you are married.
The biggest fear most thinking people have of religious courts - beth din, sharia, even the Druids have a form of court - is the fact that these laws are based on the unaccredited teachings of those old invisible friends with magic powers.
Yet many democracies are proud of the religious beginnings of their judiciary and executive. Here, Federal Parliament is kicked off each morning with The Lord's Prayer. And by some unnamed Aboriginal spirits nowadays, too.
So why would you consider going to a sharia court when next in dispute with your neighbours over their noisy barbecues? Well, in sharia law, your verdict will be considered by a religious leader; a scholar who is simply passing on the message from the book. He's not ''reinterpreting'' the Koran or looking for ''loopholes'' in the words of the prophet, as a secular lawyer would. And he will remind everyone in the court, it's not his decision to make, but the prophet's, and it is applied equally to rich and poor.
Can you fault that in our Western system, where just seeking justice costs tens of thousands of dollars - and where wealthy celebrities take drugs, drink and drive, batter their servants with mobile phones and still parade their ghastly home furnishings in Hello! magazine?
If you don't like sharia, you can always go to the Department of Fair Trade. Or the beth din. Or the Newtown men's drumming circle. These ex-judiciary arbitrations are a voluntary way of avoiding the time and expense of our formal poker-machine legal system, not replacing it. Sharia courts put justice within the reach of the poor, the dispossessed and the marginalised. And to me, they cry: "Freedom!"
Ian Crawshaw is a travel writer and author of the award-winning Aboriginal tourism guide, Australia Walkabout (Contact Guides). This article appears in Binge Thinking magazine, published this week by Thought Broker and funded by the sale of the private library of the late Herald columnist P.P. McGuinness.
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