SHARIAH LAW – NOT REALLY THAT SCARY
The question of Shariah Law and the application of Shariah Law in Australia has been the topic of fervent conjecture and feverish debate and more so since the recent assault of a Sydney man in an incident termed; “Shariah lashings”, by some commentators, while others have questioned whether or not having a beer will get a bloke flogged under Shariah Law. Before we delve into this question it is appropriate to establish some context.
OBJECTIVES OF SHARIAH
The reality of the Shariah Law is it an intricate and well developed system of judicial, social, communal, fiscal and moral laws designed to mould a person into a compassionate, freethinking and righteous human being. One of the fascinating aspects of Shariah Law is that legislation is enshrined with ethical and moral codes of conduct.
In order to establish and maintain an ethical and humane society, Shariah controls the moral conduct of a Muslim, firstly by moral instruction and secondly by the enactment of legislation regulating ethical and moral conduct and thirdly, as a corollary of the codification of ethical and moral norms a regime of enforcement safeguarding the ethical standards set by the legislation.
In contemporary times this form of government is alien to public comprehension. In fact, this way of legislation is an anomalous not only to public comprehension but also to modern criminal law. Modern criminal law is primarily focused on violations of the person; property or the state and moral codes and behaviours are not directly regulated by the state unless a violation of one of the abovementioned occurs. As a case in point, one of the reasons we have great difficulty in answering the question, “what are Australian values?” is because ethical behaviour for an Australian is not codified in legislation but rather subject to public interpretation. Contrarily, in specific situations an Australian’s moral and ethical behaviour is codified by civil legislation such as in situation whereby an Australian holds a position of responsibility and is required to maintain the highest echelons of moral practice such as in the Corporations Law. In this example, a company director is bound by a moral and practical duty to act “with loyalty and in good faith”. By way of clarification, Shariah clearly defines the moral and ethical role of a citizen and the responsibility of being a citizen in all facets of public and private life not just in the circumstance whereby a citizen holds a specific position of responsibility.
Conditions for Application
Before undertaking an explanation of the Shariah Law and its application, it is imperative to understand that Shariah Law only applies to Muslims. Yes that is right, you can rest easy; Shariah law does not apply to those who do not profess the faith of Islam i.e. Muslims. Further, most people, unfortunately including some Muslims, know Shariah Law by hearing or reading of isolated incidents of “supposed applications of Shariah” reported by mainstream media so it is understandable that fear and anxiety and even anger are expressed when the topic of Shariah is raised.
The example of the “so called” application of “Shariah Law” in the case of the abovementioned assault leaves a trail of devastation, bewilderment and resentment. The facts reported in the press indicate a man was assaulted, in his home, by a group of men who were purportedly enforcing the legislated punishment in Shariah for drinking alcohol. In order to give a theoretical and practical example of the application of Shariah Law, a hypothetical incident of similar nature to one mentioned in this article will be discussed as though it occurred in past history, in a nation where Shariah Law was applied (there are currently no countries worldwide applying Shariah Law). Remember that Shariah only applies to Muslims!
Firstly, how did the perpetrators of the assault come to know that a Muslim drank alcohol or became intoxicated? If a Muslim is drinking in her/his own home and not in public s/he could not be persecuted under Shariah Law. Secondly, if the perpetrators broke into a Muslim’s home without proper authority s/he would again not be persecuted under Shariah Law. Thirdly, if the perpetrators were not authorised by state to act in the capacity of law enforcement officers the Muslim drinking alcohol would not be punished under Shariah Law. The application of Shariah Law like any other law is subject to due process and the alleged offender is innocent until proven guilty. Fourthly, if the Muslim drinking alcohol was an alcoholic then s/he is not persecuted under Shariah Law but in fact a program of rehabilitation is prescribed. Fifthly, if the facts reported in the media are true, under Shariah Law it would be the perpetrators of the assault who would be arrested and brought to justice not the person who was allegedly punished, which is exactly what is occurring.
Sheikh Haisam Farache is a qualifed Sheikh and practising solicitor based in Sydney, Australia.