Handbook for Judicial Officers — Diversity

Interpretation (exegesis) of the Qur’an is the most important of sciences in Islam. Scholars distinguish between tafsir and ta’wil of the Qur’an. The former aims at explaining the “outer” or exoteric meaning of the Qur’an. The latter aims at explaining the “inner” or esoteric meaning of the Qur’an. There are multiple approaches to the textual interpretations of the Qur’an. Orthodox Muslim scholars suggest that an exegete of the Qur’an must have a number of specialisations including: expert knowledge of the principles of jurisprudence, Arabic grammar and morphology, rhetoric, literal and contextual understanding of the Qur’an, the science of abrogation, the Sunnah and must be able to contextualise the interpretation of the Qur’an to reflect contemporary realities.

The Qur’an is not an “open book”, although it is “clear” for those with comprehension and understanding. We rely on scholars’ interpretations who are informed by the Prophetic example and aware of the context(s) and different applications of the Revelation. One cannot simply flip open a page, read and assume to comprehend a verse’s full and proper meaning. That is not to say that there are not splinter groups or individuals, historically and presently, separate from the majority who have either denied the validity of “interpretation” or give verses of the Qur’an meanings which the majority do not accept.

It is true that there is text contained in the Qur’an that seems very violent. When such text is not read in its proper textual and historical context, it is manipulated and distorted by Muslims and non-Muslims alike.

Muslim scholars argue that those who read the Qur’an should keep at a minimum the following principles in mind: an awareness of the inner coherence in the Qur’an; to study at the least the preceding and following verses for a sense of the immediate context; look at all of the verses that deal with the same subject in the book; the occasion of revelation; the historical context of a particular verse; a cursory knowledge of Prophet Muhammad’s life; finally the way the Prophet implemented a particular directive in a verse of the Qur’an in his own life.

According to mainstream and orthodox Muslim scholars, the use of the Qur’an to justify the killing of any person, including civilians, is prohibited, completely wrong and a misguided innovation. (There is an exception where people are engaged in a field of battle, and even then, it extends to those engaged in the combat, much like the position under international law where there are designated rules of combat.) The nature of this prohibition is so specific and well-defined that there can be no legal justification, nor can there be a legitimate Sharia excuse, for circumventing this scholarly consensus.^[20]

Indeed, one of the highest objectives of Islamic law is the preservation of life or anything which leads to the preservation of life (for instance, training of medical staff, investment in cures and medicine, establishing and supporting hospitals and so on).

There are verses in the Qur’an which are open to interpretations of violence, just as there are verses in the Christian Bible, but they do not incite violence. Rather, it is violent people who incite violence; they use and misinterpret religious texts for their own purposes. In an authentic saying of Prophet Muhammad (peace be upon him), narrated via the famous Companion, Abdullah ibn Omar, he warned: “What I fear greatly for my nation is a man who mis-explains the Qur’an and who takes it out of context.”

There were individuals and groups in Islamic history who misinterpreted the Qur’an with devastating and violent consequences (including against mainstream and orthodox Muslims). The first of these was the Kharijites (during the time of the Companions of the Holy Prophet) who regarded it lawful to kill all those who disagreed with them. The orthodox and mainstream schools of thought regarded the Kharijites, and those like them, as misguided and even beyond the fold of Islam. They certainly did not regard their beliefs or interpretations as canonical. Unfortunately, there are those today who similarly misinterpret the Qur’an. Their interpretations are no more Islamic than those of the Kharijites.

There is a consensus position among Muslims, in the past and present, that the Qur’an is the speech of God, sent down upon the last Prophet Muhammad, through the Angel Gabriel, in its precise meaning and precise wording. Therefore, no parts of the Qur’an can be repudiated. However, interpretations of the Qur’an that contravene the rules of exegesis (as outlined above), scholarly consensus, or the fundamentals of Islam can and have been repudiated. For example, in his scholarly article “Defending the transgressed by censuring the reckless against the killing of civilians,”^[21] Shaykh Al-Akiti repudiates the interpretations of violent extremists’ understanding of jihad. Further, an open letter to Abu Bakr al-Baghdadi (the leader of ISIL/ISIS), signed by hundreds of Muslim leaders and scholars, repudiates the group’s actions and ideology based on the Qur’an and other jurisprudential texts.

A substantial amount of scholarly literature supports the claim that the major tenets of liberal democracy are compatible with Islam and that Islamic values and norms actually encourage “democracy”. I support this claim. Scholars argue that Islam and its laws have inherent values compatible with important elements of democracy, including: shura (consultation); ijma’ (consensus) and ijtihad (independent legal reasoning). Furthermore, a focus on the fundamental moral values shows that the tradition of Islamic political thought contains both interpretative and practical possibilities that can be developed into a democratic model. The Sharia and its sources (Qur’an and Sunnah) did not specify a particular form of government, but advocated for principles of “good governance”. The Sharia identified a set of social and political values that are central to any form of government. In fact, it can also be argued that: “In espousing the rule of law and limited government, classical Muslim scholars embraced core elements of modern democratic practice.”^[22] Three values are significant: “pursuing justice through social cooperation and mutual assistance (Qur’an 49:13 and 11:119); establishing a non-autocratic, consultative method of governance; and institutionalising mercy and compassion in social interactions (6:12; 21:107; 27:77; 29:51; 45:20)”.^[23]

In the area of Islamic jurisprudence, Muslims are obliged to comply with the laws of their country of residence as premised on the Qur’anic dicta demanding fulfilling “obligations” and “covenants”. The Qur’an states, for example, that “You who believe, fulfil your obligations” and “Honour your pledges: you will be questioned about your pledges”. Muslim jurists have also understood that the ultimate authority in any country belongs to the government, and so in a non-Muslim context it is counter-intuitive to assume that individual Muslims, or the religious leaders, can take the law into their own hands.^[24]

I do, but it depends what type of “liberal” society one is referring to. I also think it is reconcilable, (almost), with any democratic society, hence why Muslim communities have endured across the world.

It is continually increasing and normalising. The upcoming Islamophobia Report reveals concerning findings.^[25] Contrary to the assumptions, a majority of the incidents (60%) occurred in guarded areas, where police officers, security, trackwork personnel, surveillance cameras and other workers or officials were in force. A large proportion (64%) of incidents took place in commonly frequented places such as shops, schools, universities, on public transport, in traffic, carparks, petrol stations, official buildings, airports, hospitals, events and leisure centres.

The Christchurch terrorist manifesto, grounded in the Great Replacement Theory, is becoming increasingly mainstream online, fuelled by the lack of deterrents in Australia’s civil and criminal laws. According to this theory “even so called moderates” are a threat, as Fraser Anning famously said in one of his election campaign posters in 2019. It has now become mainstream online to dehumanise Muslims as a “disease” and demonise them as “terrorists, paedophiles and tyrants”. Yet in public discourse, arguments are routinely made that such incitement to hatred should be left uncensored; that religion is different from race. This overlooks the serious endangerment and marginalisation caused by that speech as Australian Muslims are readily identifiable by their names, dress, appearance and attendance at places of worship.

According to a national survey by the Australian eSafety Commissioner, 53% of Australian youth aged 12–17 have witnessed anti-Muslim harmful content online.^[26] With Australian youth representing the largest social media users in the country, one cannot underestimate the impact this has on the psychological wellbeing of Australian Muslim youth. Correspondingly, researchers based at the University of South Australia’s Centre for Islamic Thought and Education are finding a high level of identity stress now experienced in this generation.^[27] As a community, we are looking at how education is delivered to support this generation to critically process arguments that are made and understand their rights.

The impact is quite profound. The lack of clear distinction between criminals and terrorism convicts and ordinary Muslim citizens in the public discourse increases anti-Muslim sentiments and Islamophobic attacks. The Islamophobia in Australia 2014–2016 report^[28] illustrated the increasing Islamophobic incident reports to the Register^[29] after particular terrorist attacks, political rhetoric and legislative initiatives in Australia.

The effect of such statements, particularly in judicial decisions and political statements, can be demoralising and frustrating. There is a real concern that such public statements are readily utilised by those who wish to advance anti-Islamic sentiment in an environment where there are few legislative protections, if any, for Australian Muslims against vilification. They can also have the effect of perpetuating a burden on Australian Muslims to constantly resist and address suggestions that they are somehow indirectly responsible for terrorist interpretations of the Qur’an and the actions of terrorists.

Some of the observations expressed in R v Bayda; R v Namoa (No 8) and also R v Khaja (No 5)^[30] demonstrate that it is vital for Australian Muslim bodies to engage with the judiciary in an open and honest dialogue.

Sources of Islam and Islamic scholarship are not easy to understand, summarise, or discuss. Understanding the complexity and nuances of debate, even within the Muslim community, would enable the judiciary to make more insightful comments. We also have academic researchers like Dr Jan Ali, Dr Riyad Rahimullah and others who have studied the process of radicalisation and de-radicalisation in the Muslim context. This knowledge and insight needs to be shared and understood.