Handbook for Judicial Officers — Diversity

A very common term used in the Holy Quran and in Islamic law is Sharia or Sharia law. Sharia or Sharia law is the Islamic legal system derived from the religious principles of Islam, particularly the Holy Quran and the Hadith (prophetic traditions). The term sharia comes from the Arabic language term Sharīʿah, which means a body of moral and religious law derived from religious prophecy.

Sharia to Muslims is a way of life and guides the way of worshipping God. Sharia includes crime and economics, as well as personal matters such as family affairs, hygiene, diet, prayer, everyday etiquette and fasting.

The Sharia also uses guidelines such as ijma (usually the consensus of the scholars in one particular era), Qiyas (analogy derived from the primary sources), and Urf (customs). Urf is particularly significant in an Australian context as matters of custom can become imported into religious obligations and conditions which then also apply by force of religious law.

Muslims who live in Australia are considered to be living in that country under a covenant. They must, therefore, comply with the laws of that country of residence as this is considered in Islam as loyalty to the covenant which they have entered into. This is a position mandated by the Holy Quran: for instance, see Chapter 5 at [1]; Chapter 17 at [34]; and Chapter 16 at [91].

A Muslim should not break or violate oaths or promises. He or she will not be considered a faithful Muslim if he or she does so. Among the characteristics of a hypocrite that is mentioned in Islamic traditions is that he: “acts treacherously toward covenants (pledges), and when entrusted he betrays.”

Scholars have stated that those who enter any country have to adhere to the respective laws and regulations even if they have entered those countries illegally, and they have no justification for breaking those laws, since they were entrusted to abide by those laws upon entry.

There is no prohibition or restraint on a Muslim standing up for the Magistrate or Judge as a sign of respect to the Magistrate or Judge and to the court.

Courts are very formal places. Everyone in court, including lawyers, police, witnesses, defendants and members of the public must follow the court’s procedures. The Judge or Magistrate is in charge of the court. They should be shown respect by everyone in the courtroom. Standing up for the Magistrate or Judge is a sign of respect to the court.

This sign of respect is also reflected in the teaching of Islam. The Prophet (peace be upon him) commended his companion to stand up for one of the chief companions by the name of Sa’ad ibn Muath in which he said, “stand up for your chief”.

In the famous Hadith collection, Al-Bukhari states that a funeral procession passed before the Prophet (peace and blessings be upon him), and when he saw it he stood up (showing respect to it). Then it was said, it is a funeral of a non believer. The Prophet replied, “Isn’t it a soul!”.

As is the position above, there is also no prohibition or restraint on a Muslim, when entering or leaving a courtroom, to stand and lower their head in a mark of respect. To do so is also consistent with the established custom of the courtroom.

During court proceedings, it is customary to lower one’s head to the Magistrate or Judge whenever one enters or leaves a courtroom. This is a custom of respect to the court. In the Muslim faith, there are two types of lowering of the head:

In this regard, examples are given in the Holy Quran when persons were directed to lower their heads to creation: for instance, see Chapter 2 at [34]; Chapter 12 at [100]. These examples relate to the angels being directed to prostrate to Prophet Adam, and the parents of Prophet Joseph bowing to him as he sat on the throne.

One can also find such customs of respect in ordinary interactions, for instance, in practices pertaining to certain martial arts.

In the Muslim faith, both men and women should maintain the Islamic dress code: Chapter 24 at [31]

Muslim women commonly wear a headscarf referred to as a hijab to cover their head and hair. On fewer occasions, women may wear a Burka or Nikab, which also covers their face.

The Hijab and Burka or Nikab are seen as a sign of modesty, and a symbol of religious faith. However, neither of these garments, should the women choose to wear them, present as an obstacle to participation in the courtroom process.

It is not contrary to Sharia law for a woman to uncover her face when she is giving testimony in court, whether she is a witness in a case or is there to witness a deal, and it is not contrary to Sharia law for the Magistrate or Judge (male or female) to look at her in order to know or identify who she is, make assessments as to credibility where this is an issue and protect the rights of all concerned.

Indeed, the position in Islamic Law is indicated by the following authoritative pronouncements. Imam al-Dardeer said:

Imam Ibn Qudaamah said:

Imam Ahmad said:

If called upon to give evidence in court, it is not contrary to Sharia law for a woman to uncover her face and for it to remain uncovered when she is giving evidence so that the magistrate or judge may identify her; make assessments as to credit; and in order to protect the rights of all the parties in the proceedings.

According to the majority of Islamic jurists, it is not permissible for a man to shake hands with a woman who is not close kin and vice versa. Not shaking hands can be perceived as offensive in some cultures, including Australia, but it should be noted that no offence is intended by a practising and devout male or female Muslim who conforms to such a practice.

However, this should not ordinarily arise as an issue in courtrooms given that there is no requirement nor custom of parties or legal officers shaking hands in the courtroom.

Lowering the gaze and limiting eye contact are outlined as commendable practices in the Holy Quran. It is considered to be a part of modesty and respecting the opposite gender: Chapter 24:30-31.)

A Muslim applying this principle in his or her life may make a habit of this behaviour and may do it even in front of a Magistrate or Judge, including when they give evidence. If it occurs, this should not, in itself, be construed as the witness being evasive or troubled by the testimony which is being given. Rather, it is likely to be a sign of modesty or belief or practice as to modest behaviour.

Muslims believe in God and the afterlife. After a Muslim has died, it is a religious requirement that the body be buried immediately. Cremation is not permitted in Islam. Mourning lasts for three days after the burial, another reason why Muslims bury the deceased as soon as possible.

It is highly recommended in Islam to proceed with the funeral procession as soon as possible. That includes, washing, shrouding, praying on and burying the dead. This is believed to be a good sign for the deceased.

Dissection or autopsy are NOT recommended practices in Islam. Most religions have an unfavourable view of autopsy, and Islam is among them. It has called for respect of the body, even after death and prohibited its disfigurement.

Therefore Islam respects the sanctity of the deceased and outlines strict instructions to respect and honour them.

However, contemporary scholars have spoken about the autopsy process and have stated it is permissible to dissect a dead body for one of the following purposes: