The Australian National Imams Council (ANIC) attracted trenchant public criticism when on December 5 it released a guide on fostering, adoption and guardianship. The Islamic Position on Foster Care, Adoption and Guardianship was intended to provide Muslims with a summary of sharia requirements for these aspects of family life, and to inform foster care agencies about Islamic requirements.
The Australian ran the story on December 8, reporting outrage from the New South Wales Families Minister, Gareth Ward; from the federal Assistant Minister for Children and Families, Michelle Landry; and from Pru Goward, a former sex discrimination commissioner. What attracted the heaviest initial criticism was the guide's statements that circumcision was an "obligation" (that is, religiously compulsory) for boys, but there was "no obligation for the circumcision of a girl." This seemed to imply that it could be religiously acceptable to circumcise girls.
In response to an ensuing barrage of criticism, the imams amended their guide to say, "It is impermissible and forbidden to circumcise girls in Islam." However, there were thirteen other points of guidance in the statement, many of which could give cause for concern, so Michelle Landry instructed ANIC that it "must recognise that child safety and permanency is subject to Australian state and territory laws."
On December 10, The Australian reported an "extraordinary attack" by the Australian Federation of Islamic Councils (AFIC) on the ANIC guide. The AFIC said that it would refer the ANIC document to its own National Sharia Board, which is also composed of Islamic scholars.
In essence this is a public confrontation between Islamic sharia and the laws of Australia.
In essence this is a public confrontation between Islamic sharia and the laws of Australia, something which many in the Muslim community would wish to avoid, as it can only harm the Muslim community's public standing.
In those aspects where the ANIC document most offends, the fundamental issue is not the imams or their intentions, but the fact that irreconcilable inconsistencies exist between the requirements of Islamic family law and Australian legal standards and community expectations. These inconsistencies need to be carefully noted and understood, but they cannot be resolved by denouncing the imams or the guidance they have issued. Government officials cannot expect Muslim scholars to provide religious guidance which is inconsistent with the requirements of sharia.
Irreconcilable inconsistencies exist between Islamic family law and Australian legal standards and community expectations.
Islamic law, known as sharia or "the path" for Muslims to follow, has a great deal to say about how family life should be regulated. By Islam's own self-understanding, human beings are weak and easily led astray. To address this weakness, Islam teaches that God has provided guidance to help human beings keep to the right path. For example, this perspective is reflected in the ANIC statement that "Islam sees attraction between the sexes as very powerful and at times overpowering," therefore, the statement explains, sexual relations are limited to within marriage.
Islam's system of guidance was mediated to humanity through Muhammad's life and teaching, as well as through the words of the Koran. A core function of an imam, and of Muslim religious scholars in general, is to communicate this guidance to Muslims in a form they can understand and live out for themselves. This was the purpose of the ANIC's guidance: to provide an overview of sharia requirements for fostering, adoption and guardianship, to encourage foster care by Muslim families.
In the light of this, some of the outrage at the ANIC statement is misplaced. The imams' role is to deliver Islamic guidance to Muslims. The imams had accurately reported a sharia requirement that, if a young person lacks legal guardians, for example due to being orphaned, an imam is to assume the role of guardian, or appoint someone else as guardian. In response, Pru Goward objected that "There is no legal process which would give an imam parental rights and responsibilities over a foster child in Australia." Indeed! But the role of an imam is to teach Islam, not Australian law.
Islam makes fundamental claims about right and wrong, which it testifies have been handed down from God. Furthermore, many Muslims believe—and Islam itself teaches—that non-Muslim ways, such as the laws of a secular state like Australia, will not be equal to sharia. The imams' purpose in writing this document was to inform Muslims about sharia, in the context of Australian conditions. Yes, Australian Muslims have an obligation to obey the laws of Australia, but if they are pious, they will also feel an obligation to obey the laws of God. The imams' religious duty is to communicate God's laws to Muslims, and the fact that a body representing over 200 Australian imams has issued such a statement means that it can be assumed to reflect mainstream teachings of Islam, all loud objections notwithstanding.
ANIC wants non-Muslim foster care and adoption agencies to make allowances for Islamic beliefs and practices.
In addition to guiding Muslims, the ANIC also wants non-Muslim foster care and adoption agencies to understand and make allowances for Islamic beliefs and practices. Most Australian Muslims want good relations with other groups in Australian society, so it is hardly surprising that they are seeking recognition and toleration from the mainstream for their beliefs and practices. As the ANIC document states, they wish "to promote harmony, cooperation and successful integration within mainstream society." Yet what the ANIC is certainly not interested in is assimilation.
The problem is that sharia is in many respects fundamentally inconsistent with Australian community standards and laws. The outrage that political leaders have expressed over the ANIC's document on fostering, adoption and guardianship is in reality outrage at Islam itself, and a rejection of its divine status.
What are the core features of the imams' guidance on fostering, adoption and guardianship, and what could be objectionable about them?
In Islam, adoption is forbidden. Fostering is permitted, and highly respected.
In Islam, adoption is forbidden, based on the example of Muhammad. What is permitted, and indeed highly respected, is fostering.
In Islam a very important practical distinction exists between closely related individuals and those outside the family group. Within the family a close relative of the opposite sex whom one is forbidden to marry is known as a mahram (from the root h-r-m meaning "forbidden"). A woman's mahram relatives include her brothers, sons, father, grandfathers and uncles, and also father-in-law, sons-in-law, stepfather, and stepsons. An implication of this distinction is that once a girl has reached puberty she is required to cover herself in the presence of men, but not in the presence of mahram relatives: in the privacy of her own home she can be uncovered, as long as all the men who live in the household are her mahram relatives. (Also, according to one of the controversial provisions of sharia, a woman travelling outside the home must be accompanied by a mahram male.)
This distinction impacts significantly upon fostering, because the default for a fostered child is that he or she is not a mahram of the fostering family. Thus, for example, a Muslim man can marry his foster daughter or foster sister: Muhammad himself set a precedent for such marriages by marrying his foster son's wife, Zainab.
Inside the home Muslim women do not normally wear the hijab, and this is religiously acceptable as long as all the males who live in the home are in a mahram relationship with the woman. What becomes awkward is when a non-mahram foster child reaches puberty. If the child is a male and living at home, Islam requires the women of the household to start covering themselves in the home. On the other hand, if the child is a female, she will have to cover herself at all times in the presence of the men of the household. Either way, it will be extremely inconvenient to the point of being unworkable for the women.
The ANIC document acknowledges the difficulties a lack of mahram status presents for foster children, and it suggests that older girls be placed in families with only daughters, and older boys be fostered by families with only sons. This would help to avoid at least some, but not all of the domestic difficulties posed by non-mahram status. The statement also reports that "in some cases foster carers ask that the child leave their home at the onset of puberty," and sometimes Muslim families avoid fostering altogether, to prevent the eventual trauma of separation.
There is an exception to the mahram rule for fostering, which applies if a woman has breastfed someone from infancy. In this case, for the purposes of the mahram rules, the child is treated as a biological child of the woman. However, according to the imams, for this exemption to apply, breastfeeding must have taken place before the child turns two.
The issue of naming is also important in relation to Islamic fostering. According to the Koran, children must be named after their biological fathers: "call them by their fathers' names." Furthermore, biological parents have certain inalienable rights over a child, so they can reassert custody at any time, if they are capable of caring for the child, and they have enduring rights to visit. This cuts across Australian legal understandings of parental rights.
The imams assert that foster parents must encourage children from the age of seven to do Islamic prayers.
The imams' document also discusses "prayer obligations." Muslim parents have an obligation to make their children perform compulsory daily prayers. The imams assert that foster parents must encourage children from the age of seven to pray Islamic prayers—no exemption is mentioned for non-Muslim foster children—and for this they must be "disciplined from the age of ten." This guidance appears to be based on a saying of Muhammad, not cited by the imams, which states, "Command your children to pray when they are seven years old, and beat them for it [if they do not pray] when they are ten years old, and separate them in their beds." Most Australians would find it problematic that Muslims parents are advised to use discipline to compel their children to pray.
The reference to "separate them in their beds" means that children of opposite sexes should be sleeping in different bedrooms from the age of ten. This too is discussed in the ANIC statement.
The statement goes on to discuss "marriage rights over foster children." This is a reference to the role of the wali or male guardian in relation to marriage of a woman. The Koran states that men are the guardians of women (Sura 4:34).
In Islamic law, a marriage is technically a contract between a groom and the bride's wali, by virtue of which guardianship of the woman is transferred from the wali to the groom, and, in return, the groom hands over a bride-price. If a father is not available to act as guardian, the guardian's role passes to the paternal grandfather, and failing that to another male relative, such as a brother.
Not mentioned in the ANIC statement is the fact that in Islamic law a father or grandfather is called a wali mujbir or "forcing guardian," because he can compel an unmarried daughter to marry, without her permission. However, the ANIC statement explains that foster parents do not have such "marriage rights" over a foster child, and points out that if a biologically related guardian is not available, the imam can act as the child's wali.
The imams' statement also addresses the issue of circumcision. The imams commend circumcision of boys, preferably within seven days of birth, but in any case before puberty, but only if the biological parents have given permission. As noted above, in response to public criticism they replaced the statement that there is "no obligation" to circumcise a girl, with guidance that it is "impermissible and forbidden to circumcise girls in Islam."
Pru Goward asserted, "The word circumcision should not apply to girls—it is female genital mutilation and it is illegal." However, the imams would have been working with Arabic categories familiar to them from Islamic jurisprudence, which treats circumcision of boys and girls under the same cover term, khitan or khatnah. (There is also a distinctive term for female circumcision, khifadh, from a verb which means "to lower" or "to make gentle, calm or submissive.")
Although the imams' later disavowal of female genital mutilation (FGM) is commendable, there is in fact a link between Islam and this practice. Circumcision of girls has been conventionally regarded as obligatory in the Shafi'i school of sharia; was commended in the Hanbali school; and in none of the four Sunni schools was it actually prohibited. For example, the Shafi'i manual of Islamic law, Umdat al-Salik ("The Reliance of the Traveller"), states that circumcision of girls is obligatory by "cutting out the clitoris." FGM is widely practised in regions where Shafi'i Islam predominates, including Indonesia, Malaysia, Brunei, Kurdistan, Bahrain, parts of southern Arabia, Somalia and Sudan. Of all the countries where FGM is commonly practised, around 90 per cent are members of the Organisation of Islamic Cooperation.
It is only in recent decades that the practice of FGM has become controversial and disputed among Muslims: there have been eminent Muslim authorities who have spoken for it and others who have rejected it. Arguments for and against FGM have even been debated by Muslim scholars on Arab television.
In the light of this controversy, and the long history of FGM as a widely accepted and indeed established religious practice within Islam, this aspect of the imams' statement can be welcomed as a helpful clarification for the purpose of encouraging Australian Muslims to conform to Australia law, but it is hardly the last word on the topic.
The imams' guidance says that "court orders must be taken into consideration."
The ANIC imams want Australian Muslims to conform to sharia, and they also want organisations devoted to the care of children to be aware of and sensitive to Islamic requirements. At this stage in the establishment of Islam in Australia they are seeking toleration and acceptance from the wider Australian community, including freedom to observe sharia law, which they consider to be Allah's perfect decree for all humankind. At the same time, they understand that Muslims must follow the laws of the land. For example, in their guidance they point out that, Islamic law notwithstanding, when considering custody rights, "court orders must be taken into consideration." They also commend certain behaviours which most Australians would agree with, such as stipulating, as a matter of religious principle, that money received from the government for a foster child must be spent on that child. At the same time, they also want sharia to be acknowledged, understood and respected by the authorities.
ANIC guidance reflects the shariah principle that male guardians can exercise "marriage rights" over their female charges.
Yet, major difficulties arise where sharia conflicts with Australian law, such as the imams' assertion that an imam has the right to act as guardian for a girl who lacks a biological male guardian. There are other aspects of sharia, reflected in the ANIC guidance, which will be rejected by most Australians, such as the idea that male guardians can exercise "marriage rights" over their female charges. In contrast, since the Fourth Lateran Council of 1215, Western marriage laws have supported the principle that two people can be married only on the basis of their freely exercised choice, and Australian marriage laws uphold this principle.
Another concern is the damaging implications of mahram rules, which mean that religiously observant Muslim parents may prefer to terminate foster arrangements for children when they reach puberty, or avoid fostering altogether.
It will also seem objectionable to most Australians that Muslim parents have been told by the ANIC to use "discipline" to compel their child or foster child to perform Islamic prayers, once they reach the age of ten, apparently irrespective of the actual faith and beliefs held by the child, for the ANIC guidance commends fostering of both Muslim and non-Muslim children in Muslim families.
There is a strand of thought in Australian society that Muslims are a vulnerable minority, subjected to racism. It is believed that Australians should respond to this fact by expressing positive regard for Islam and its followers. However, the agenda of social embrace through cultivating positive regard for Islam founders on the gap between sharia and the values of the Australian mainstream. While some Muslim leaders may prefer not to draw attention to this gap, it exists, and it needs to be acknowledged.
It is not inconsistent to affirm the human rights of Muslims, while rejecting objectionable Islamic religious practices.
To put it bluntly, either Islam is true and sharia is perfect, or Islam is not true and sharia is a flawed human construct subject to examination and critique, not least for its discriminatory treatment of women in the wali system. It is not inconsistent for Australia to affirm the inherent human dignity, worth and human rights of Muslims, while at the same time firmly rejecting objectionable aspects of Islamic religious practices.
The ANIC reported on its Facebook page that the New South Wales Department of Justice had "recognised" their statement, and that it was finalised only after consultation with government and non-government agencies. Moreover, a representative of the department had attended the launch, as did representatives of the charities Settlement Services International and Creating Links. This was a mistake. It is wrong of government departments and non-Islamic charities to appear to be endorsing the submission of human beings under sharia conditions.
On the other hand, strident denunciations of the Australian imams for promoting sharia principles are worse than pointless. Imams will promote Islam. They must do so. The question is, will Australian law-makers intervene to disrupt and limit the damage caused by some of the provisions of sharia, including their impact on women and children? Should government agencies turn a blind eye to institutions like male guardianship, even to the extent of showing up to the launch of a document which promotes this inequality?
The global rise of sharia is one of the big faith stories of the past half-century. Sharia is challenging Western legal systems and social structures in many ways, but we should be surprised by none of this. The passing of time and the onward march of history inevitably challenge cultural traditions. The mainstream's response should not be to fulminate, for that is pointless, but to provide firm clarity when saying "No" to certain specific sharia agendas, but to do this effectively requires understanding.
Australian authorities must reject the ANIC statement and seek to limit the application of sharia.
Australian authorities must reject the ANIC statement, not because the imams that drafted it are reprehensible or ignorant: they were simply following the script of their faith. The long-term challenge for Australian authorities is how to limit the application of sharia, while promoting respect for Muslims as humans with human rights like anyone else. A lamentable outcome would be to make special concessions to Islam, of the kinds that the ANIC has requested through the guidance it has delivered.
Mark Durie is a Fellow at the Middle East Forum, founding director of the Institute for Spiritual Awareness, and a senior research fellow of the Arthur Jeffery Centre for the Study of Islam at the Melbourne School of Theology.