Is Following Sharia Law Actually Unconstitutional or Disloyal?

Thursday 25 September 2014 @ 12.24 p.m. | Legal Research | Immigration

Following recently reported calls by Palmer United Party (PUP) Senator Lambie in the context of the debate around national security, " .  .  . for a ban on burkas saying anyone who supports Islamic Law should leave Australia . . ." it would seem  valuable to spare  some time to consider what Islamic or "Sharia" law is and how relevant it is, if at all, to the national security debate.

In an article on Senator Lambie's comments, the ABC news reports the Senator as saying she rejected Sharia law saying:

"There is an issue right now. I want to see their [Muslims] full allegiance, not 50 per cent, to the Australian Constitution and Australian law. It is one law for all. That is the Australian law full stop,  .  .  ."

While Senator Lambie's pronouncement is the most recent, it is not the only one to criticise Sharia law in the recent past - in a report on the topic the ABC news reports the comments in 2006 of the then federal treasurer Peter Costello who said:

". . . there was no place for sharia laws in secular society like Australia, [because being an Australian means that] you do have to believe in democracy, the rule of law and the rights and liberties of others".

Likewise, the ABC reports the March 2012 comments of the then Attorney-General Nicola Roxon that:

". . . there is no place for sharia law in the Australian society and the government strongly rejects any proposal for its introduction, . . ."

in response to the execution of wills that favour sons over daughters.

Is following Sharia Law Actually Unconstitutional or Disloyal?

From the views expressed abov,e a first question would appear to be - Is anyone who followed or took note of Sharia law actually defying Australian law or being disloyal to the Australian Constitution?

In a recent article appearing in The Conversation by Christopher van der Krogt (a Lecturer in Religious Studies at Massey University), it is asserted that: "Islam, like Judaism, is a religion of law". This terminology and the description given in the article would seem to indicate that Sharia is more spiritual in its nature and is not a secular code which all must adhere to strictly.

In Arabic the literal meaning of Sharia is reported as: "the road to the watering place", a reference to "the revealed guidance and directives given by Allah". It is written down or consolidated in the Islamic holy book, the Koran, as well as the Sunna, namely the teachings, deeds, and sayings of the Prophet Mohammed.

Sharia law is, according to the literature, "a way of life for most Muslims" specifying firstly, all religious duties (like prayer and fasting) but also, matters like the paying of money to charity, supporting the poor and looking after the weak and the vulnerable. It is also meant to inform everyday transactions and guide Muslims in their way of life, requiring them to dress modestly, to treat other people decently, and to be ethical in their business dealings.

From the above it would seem logical to think that Sharia law like many other fundamental sets of beliefs is a very conservative religion but a religion none the less.

If one then agrees that it is a religion, then claims that a person is disloyal to the Australian Constitution by following Sharia law might not be so easy to substantiate. In fact, one might even be inclined to argue that the Australian Constitution protects the right of an Australian Citizen to follow their chosen religion within the bounds of reason and observance of the secular law. Indeed the Commonwealth Constitution does include clause 116 which provides that:

". . . The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth".

While the provision is directed to the exercise of government power over religion and is not a blank cheque to any wild or unreasonable set of beliefs, it does, in its wording, also indicate an intent to allow religious and spiritual belief a good degree of latitude, diversity and tolerance; and certainly indicates an intent to not have any one state proscribed moral code or religion enshrined over all others.

A More General Misunderstanding

At a more general level, the mistaken impression of many Australians that Sharia law would/could "take over" the Australian constitutional legal system, or encourage terrorism, seems to be just that - mistaken. On this, a recent ABC report quotes Associate Professor at the Griffith University School of Humanities Mohamad Abdalla as saying:

". . . non-Muslims are exempt from sharia, except in cases of murder, manslaughter, rape and theft", and Muslims are encouraged to obey the laws of the country in which they reside under sharia".

Further in the report he goes on to say:

"When conflict arises between sharia and Australian law, and sharia law cannot be accommodated or causes unnecessary hardship, then abiding by the law of the land becomes binding."

So is following Sharia law actually unconstitutional or disloyal? Probably not, where it is practiced within reason and within the Australian legal system.

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