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Posted on Dec 16, 2017

Imams Council note on “Judicial Process” represents sheepish politics

Imams Council note on “Judicial Process” represents sheepish politics

 

The Australian National Imams Council put out a ‘Explanatory Note on the Judicial Process and Participation of Muslims’ (https://goo.gl/53DDHF) this week, which, in sum, does little more than to (unwittingly, I hope!) provide religious cover for the state’s assimilation of Muslims.

The document intends to give guidance to Muslims on the ‘etiquette and behaviours expected of persons engaging in the judicial processes so that they may act consistently with these without compromising their religious beliefs’ and to ‘provide information to judicial officers on Islamic concepts and practices as they relate to matters which may be raised in connection with Muslims participating in court processes’ (3). What it actually does is take regnant court conventions as given and provide watered down versions of fiqh that allow these conventions to be upheld.

One is left wondering whether ANIC thinks the secular court conventions more sacred than the fiqh.

The nine-page document takes a number positions:

– Justice in Islam is an abstract notion of ‘putting things in their rightful place’, equal rights and fairness, not unlike the western tradition (3);
– Muslims must comply with the laws of Australia as they live under a covenant (4);
– Muslims must stand for the magistrate or judge and bow on entering and exiting the courtroom because there is no prohibition in doing so and respecting the judge and the court entails doing so (5);
– Muslims can affirm their evidence or make an oath on the Qur’an; deception under oath is a major sin (6);
– Muslim women who wear the niqab can uncover their face when giving testimony and the judge, male or female, can identify her (7);
– Muslims not shaking hands with opposite gender or lower gaze are not signs of disrespect nor against customs of the court (8);
– Autopsies are not recommended in Islam but contemporary scholars have allowed it in certain cases (9).

There’s clear cherry-picking and fallacious logic employed. For instance, apparently it’s okay to stand for the judge upholding secular law and ‘respect’ the secular court (which by definition challenges Allah in His sovereignty) because the Prophet (saw) asked some companions to stand for Sa’d ibn Mu’adh. Wow! Respect for a noble companion of the Prophet (peace be upon him) is made analogous to respect for a kafir (disbelieving) judge and a secular court. Likewise, it’s apparently okay to bow to a judge because Allah asked the angels to prostrate to Adam (as). What?!

Then there’s the mischaracterisation of what justice is in Islam as if it’s indistinguishable from modern western conceptions. And the dumbing down of a diverse Islamic tradition. As if it’s not, at the very least, a valid position to deem bowing to a secular judge problematic and to refrain as a matter of principle, or as a matter of leaving the doubtful?

Leaving all that aside, the greater issue is not the fiqh itself – not all the fiqh positions articulated are wrong or compromised – but the way it is deployed politically. What we have here is a sheepish, empty and defensive politics.

Why should the Muslim community, already under the pump, compromise further? Why can’t the court conventions be made more flexible?

Are they sacred (the irony!)?

Can the judge not perform his or her job if people don’t bow to or stand for them? Are they there on an ego trip or to fulfill a role?

We should keep in mind that standing/bowing before the judge has only been made an issue in ‘terror’ cases of the last few years. Thus, the issue arises in the direct context of government excesses against the community. Instead of pushing up, problematising the counter-terror regime, standing for those youth who’ve been made examples of, holding the government to account for it context targeting of Muslims, we have those claiming ‘leadership’ here instead focusing on irrelevancies and providing religious cover for the state. One is left thinking whether ANIC is providing guidance as independent and principled scholars who role is to uphold and carry Islam or is just facilitating the government agenda with respect to Muslims.

Turnbull, Abbott et al would definitely be happy with this ‘guidance’!


Uthman Badar is a student of Islamic sciences, philosophy and a member of Hizb ut-Tahrir Australia.

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