Hege Storhaug, HRS
Ideen bak forslaget som er presentert i et juridisk tidsskrift i Australia er at muslimske kvinner ”skal kunne presentere saken sin under rettferdige og kulturelt sensitive forhold”. Argumenter i kampen om muslimske kvinners ”sjel” i vesten, er uransakelige. Det mest interessant5e med nyheten fra Australia er at shariadomstolen kun skal behandle skilsmisse, som på sitt eget talende vis forteller hvor viktig ”enkelte” mener det er å ha kontroll over den muslimske kvinnen, og dermed hvor vanskelig det er for så alt for mange muslimske kvinner å kunne ta del i frihetsverdiene som ligger til grunn for de vestlige demokratiene. Det handler visstnok om ”rettslig pluralisme” – vakre ord. Det sies videre at sharia allerede opererer i Australia, ved at flerkoneri inngås og mindreårige jenter giftes bort. Altså samme forhold som i Europa.
The latest move, under the guise of helping Muslim women, would give sharia law priority over Australian divorce law.
If enacted, this plan would prevent Muslims from obtaining a civil divorce unless they first divorce under Islamic law.
The plan, published by the Alternative Law Journal, would require Muslims to appear first before a proposed Islamic divorce council made up of imams and lawyers who are familiar with sharia and Australian law.
This tribunal would «assess the credibility» of divorce applications from an Islamic perspective. Divorce decrees from this proposed council would be recognised under sharia law and become binding under civil law after approval by a civil court.
These are the key recommendations from an article in the journal that says its goal is to help Muslim women avoid improper pressure from former husbands who refuse to grant them a religious divorce.
«By establishing the council and formalising the process, women would be able to present their case under fair and culturally sensitive conditions,» solicitor and migration agent Ismail Essof says.
«A process which is recognised under Australian law would mitigate some of the abuses currently permitted.»
By giving indirect legal recognition to a tribunal applying sharia law, Mr Essof’s plan adopts one of the main techniques to have helped sharia law become part of Britain’s legal framework.
In the Alternative Law Journal, Mr Essof makes clear he has been influenced by the British response to sharia law and legal pluralism.
His article quotes Britain’s Lord Chief Justice Lord Phillips as saying: «There is no reason why sharia principles or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution.»
He endorses the concept of legal pluralism, asserting that it has been advanced in many democracies, «Australia included».
This assertion by Mr Essof might seem odd when compared to the clear and repeated statements by federal Attorney-General Robert McClelland that Australian law wins out whenever there is a conflict between cultural values and the rule of law.
Yet it is easy to see how Mr Essof could conclude legal pluralism has been embraced by Australia, just as it has been in Britain.
Recent research by legal academics Ann Black and Kerrie Sadiq, published in the University of NSW Law Journal, found sharia law had already become a shadow legal system in Australia, endorsing polygamous and under-age marriages that are outlawed under the Marriage Act.
Mr Essof points to the fact that special sentencing courts for Aborigines, known as circle sentencing courts, are in place.
He says they are «a contemporary example of the application of legal pluralism».
In the context of his plan for a sharia divorce tribunal, Mr Essof says legal pluralism means «a holistic approach to the law which allows minority groups to find recourse and cultural significance».
He writes that he does not advocate a separate legal system for Muslims «but rather incorporation of the single aspect of Islamic divorce law».
«Failure to reconcile Islamic divorce law and Australian civil divorce would undermine court processes and have a negative impact on local Muslim communities in Australia,» he says.
Missing from Mr Essof’s argument is any reference to the backlash from Australian Muslims when Australian Federation of Islamic Councils president Ikebal Patel called for Australia to compromise with Islam and embrace legal pluralism.
Mr Patel said later that he supported secular law, and it had been a mistake to even mention legal pluralism.
Mr Essof makes it clear that if his scheme takes root, the jurisdiction of the proposed sharia divorce tribunal could grow.
«If the system proved successful and established grounds to look at addressing other areas of family dispute once a marriage has broken down, then the council could be given formal recognition in addressing these disputes as well, acting as an arbitrator, with the courts then providing a legally binding approval,» he says,
The first step would require the federal government to «empower and assist» the Muslim community to establish the council. «Australian law should require both parties to appear before the Islamic Divorce Council upon or before applying for a civil divorce in circumstances where their civil marriage was accompanied by a religious ceremony (as documented in the marriage certificate),» Mr Essof says.
«The council will not have legally binding powers unless decisions were to be approved by a court during the civil divorce proceedings. A decree pronounced by the council would, however, be recognised by Islamic law.»
The final step would require the inclusion of what Mr Essof describes as an «extra criterion» in a divorce application.
«The applicant would be asked if they were married through a religious Muslim ceremony. If the applicant responded in the affirmative, then they would be required to prove to the registrar that the couple has been divorced under sharia law. Unless there is official documentation to prove a religious divorce has been granted, an application for divorce under civil law would be denied.»