The situation is different in Australia. The state of Victoria has already allowed the shariah camel’s nose under the tent by providing for the application of foreign law in its Charter of Human Rights. Many thanks to the Australian tipster who sent this op-ed from The Australian:
Charter opens door to Sharia law recognition
THE issue of Sharia law and human rights is rippling around the world.
In the US state of Oklahoma, voters recently approved a proposal that forbids state courts from considering or using international laws, as well as Sharia, or Islamic law.
A US federal judge has suspended the certification of that change to the law because it might breach the constitutional rights of individual Muslims.
In Victoria, the Charter of Human Rights actually permits the use of international laws and judgments in applying the charter.
Section 14 of that charter provides for freedom of religion. The issue then arises, does this mean that Muslims are entitled to have Shariah law applied to them in the Victorian courts?
Obviously, Islam is a religion. Less obvious, but more important is that, unlike Christianity, Islam is a complete religion governing every aspect of the believer’s life, including law.
Shariah law is actually an integral part of the Islamic religious belief and, under the charter, must be protected and applied. Section 32(2) of the charter throws more light on the issue.
That subsection states: “International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.”
It is important to understand that there are “courts and tribunals” applying Shariah law to the 1.6 billion Muslims in the Muslim world.
In addition to that, the Islamic world has its own Human Rights Covenants -- the Cairo Declaration on Human Rights in Islam, 1990, which is intended to “serve as a general guidance for member states in the field of human rights”.
In the Cairo Declaration, it is made clear that all human rights derive from the Koran.
For example: “There shall be no crime or punishment except as provided for in the Shariah” (Article 19(d)); “All the rights and freedoms stipulated in this declaration are subject to the Islamic Shariah” (Article 24); and “The Islamic Shariah is the only source of reference for the explanation or clarification of any of the articles of this Declaration” (Article 25).
These human rights must be fully respected. Australian Muslims deserve no less.
Decisions on Islamic human rights must be relevant in deciding whether Shariah law is applicable in Victoria.
Quite obviously, those Islamic decisions powerfully state that Shariah law must be applied. The Victorian courts must consider these decisions under the charter, thus it makes it very likely that, at some stage in the future, Shariah law will be applied.
Further, there is precedent in Victoria through courts that are for the exclusive use of a minority group, in this instance Aborigines (known in Victoria as Kooris).
As a matter of principle, there is no difference between special courts that are racially defined (Koori courts) to those which are religiously defined (Shariah courts).
In fact, the Muslims have a much stronger case because their devoutly held beliefs actually include a legal system (Shariah).
It is this sort of process that the Oklahoma citizens voted against. In Victoria it is too late.
Peter Faris, QC, is a Melbourne barrister and media commentator
