The limits of multiculturalism in Australia? The Shari’a flogging case of R v. Raad,Fayed,Cifci and Coskun

Introduction

There is enduring academic and political debate on the status and ailing health of multiculturalism in contemporary western societies (Joppke, 2016; Modood, 2008, 2013). While many authors dispute the rhetoric that multiculturalism is ‘dead’ (Modood, 2008, 2013), others speculate on the retreat (Joppke, 2004) of multiculturalism or a backlash against it as a political project in modern western liberal democracies (Vertovec & Wessendorf, 2010). Muslims, as diverse populations immigrating to the west from the ‘rest’ of the world, often from non-liberal cultural and political frameworks, have been constructed as presenting the central challenge to liberal multiculturalism and its agenda of social cohesion within pluralised contexts. The alleged threat to social cohesion is predicated on reductive understandings of Muslims’ alternate normative codes and related assumptions about the depth of their difference.

Shari’a, in most plural western societies, has come to represent this difference and threat with the violent edges of Shari’a practices reinforcing a politically driven narrative stating the normative incommensurability of Shari’a with western liberal norms. Such narratives coalesce with broader debates around multiculturalism and Muslims as located at its normative limits.

These very considerations were (re)invigorated by the case of R v. Raad, Fayed, Cifci and Coskun, tried and sentenced in a Sydney Local Court between October 2012 and June 2013. In this case, four Muslim men, Zakarayah Raad, Fadi Alemaddin (aka Wasim Fayed), Tolga Cifci and Cengiz Coskun were convicted of assault occasioning actual bodily harm for flogging with an electrical cable a Muslim convert, Christian Martinez, ostensibly for the purpose of punishing Martinez’s excessive consumption of drugs and alcohol. The case invokes some core themes that characterise current debates on multiculturalism and related issues around Shari’a and legal pluralism. Restricting the empirical context to the debates around Shari’a practice and multiculturalism in Australia, we interrogate what it means to ask about the limits of multiculturalism, how these ‘limits’ are framed, and how a consideration of ‘limits’ raises issues about the health or otherwise of multiculturalism.

Acknowledging that multiculturalism is a contested political and philosophical concept, this article, first, discusses the limits of what might be the unacceptable fringes – the objectionable margins of some cultural practices as exemplified by the whipping case. Second, it argues that such cases and dominant reactions to them expose the limits of multiculturalism as a political framework. Namely, a stereotyping and reactionary approach to the misdemeanours of a few individuals within a large, culturally diverse group speaks as much to the limits or limitations of a social context that remains myopic in its understanding of Muslims and their values as incommensurable and threatening. A third notion of ‘limits’ is also discernible in allusions to un/acceptable Shari’a outlined by practising Australian Muslims themselves in the context of a broader project on everyday Shari’a practices (see Possamai, Turner, Cheng, Voyce, & Dagistanli, 2016; Possamai, Turner, Roose, Dagistanli, & Voyce, 2015).

Viewing the health and limits of multiculturalism from these perspectives and through the whipping case study, this article will begin with some insights on Shari’a, demonstrating the contested nature of its interpretation and practices. Following this, a brief consideration of multiculturalism in theory and practice in an Australian context will situate the legal and political discussions around the Shari’a whipping. Via the whipping case, this article considers an example of the potential extremities of Shari’a practices – its normative limits – and how these might flourish within a social and political backdrop that marginalises Muslims. Yet we argue that it is equally problematic when such interpretations and practices are popularly represented as exemplary of all Shari’a and Islam. Ultimately, we contend that the readiness to excise Muslims from citizenship (Razack, 2007) as a response to the marginal extremities of some Shari’a practices exposes to a similar extent the limits, or rather the limitations, of multiculturalism and its ‘illiberal liberalism’ (Joppke, 2016, pp. 6, 161).

Defining Shari’a: Lived experience and law

Notwithstanding its negative image, the term Shari’a simply means ‘the path to follow’ for salvation (Yamani, 1979) based on the divine revelation of the Qur’an, while also encompassing Islamic law (derived through fiqh or Islamic jurisprudence). Hence Shari’a simultaneously comprises legal, religious and moral rules and duties for Muslims, providing a ‘comprehensive guidance to Muslim life’ (Menski, 2006, p. 284). The multiple directives stipulated through Shari’a are sourced primarily from the Qur’an and the Sunna, defined as the tradition of the Prophet Muhammad consisting of recorded statements, judgements and actions that elaborate on the Qur’an. However the legal elements of Shari’a (fiqh) are founded on these sources while also being subject to the reasoning and interpretations applied by Islamic jurists (Kamali, 2008, pp. 16–17).

The comprehensive nature of Shari’a has thus led to its characterisation as law as well as an ethical system adaptable in its application to lived experience despite the general understanding that divine revelation is immutable (see Kamali, 2008, pp. 49–50). Hence the daily practices, laws and ethical guidance prescribed by Shari’a are dependent, in ‘real life, [on] human interpretation and application’ while being simultaneously based on religious doctrine that ‘asserts superior divine authority’ or ‘God’s will’ (Menski, 2006, pp. 284–285). As Menski observes (2006, p. 279), this amounts to a core tension within Islamic jurisprudence, and the extent to which Shari’a – as divine revelation – should be open to interpretation has been hotly contested among Muslim scholars and jurists. ¹ Yet, such tensions do not resolve the inevitability of human interpretation: ‘Islam as a way of life and lived experience is … intricately linked to Muslim law as a matter of belief and socio-cultural interpretation’ (Menski, 2006, pp. 283–284).

A fundamental question that arises in these debates is who might be authorised to interpret the Qur’an and Sunna; ‘[m]ost Muslims accept that interpreting and ascertaining the “meaning” of Sharia as related to ethics and law is the domain of fuqaa (jurists) rather than theologians or philosophers’ (Moazam, 2011, p. 317). Here the question of who might be authorised to interpret the Qur’an returns to the distinction between Shari’a as a religious, moral and ethical framework based on divine revelation, and Shari’a as fiqh. Kamali (2008, p. 16) draws distinctions between ‘Shari’ah [which] is laid down by God and His Messenger, [and] the edifice of fiqh [a]s erected by human endeavour’. Hence Shari’a as lived experience is the preserve of individuals and their internalised moral, ethical and religious convictions as gleaned from the Qur’an (which, as Menski points out, begs the question of human interpretation); while fiqh or ‘manmade’ elements of Shari’a can only be interpreted by those who are trained as Islamic jurists and scholars.

Such nuances are largely overlooked in Australian media, political and legal narratives. This becomes particularly evident in the media coverage and political commentary around the whipping case where the actions of the perpetrators were portrayed as representative of all Shari’a norms. We argue at a later juncture, that the current framework of Australian multiculturalism fails to appreciate the nuances of Shari’a and other culturally divergent practices, and that this underscores one of its core limits or limitations.

Multiculturalism in theory and practice

The debate about the health of multiculturalism is partially animated by a lack of coherence around how multiculturalism might be defined and in what context. Kymlicka (2012, p. 3) refers to multiculturalism as ‘ideas about the legal and political accommodation of diversity … as a vehicle for … new relations of democratic citizenship’. Meanwhile Parekh (2006, p. 6) distinguishes between the fact of ethnic, cultural and religious diversity within a modern state and multiculturalism as ‘a normative response to that fact’. Modood (2013, p. 114) comes to concentrate on multicultural citizenship, defining multiculturalism as:

… the dynamic outcome of social and political struggles and negotiations surrounding racial, ethnic and religious differences in relation to non-white migration into white countries. The terms of engagement are … about identifying and overcoming the obstacles to the extension of citizenship across difference.

The unifying message between theorists is that multiculturalism is multifaceted, ‘a conceptual grab bag’ of issues relating to ‘race’, culture and identity’ (Mills, cited in Lentin & Titley, 2012, p. 124).

In the context of Australian multiculturalism, Hage (1998) argues that citizenship, belonging and claims of ownership over a nation are delineated along racialised lines by a hegemonic ‘white’ culture. The progressive abandonment between the late 1960s and early 1970s of the White Australia policy, which restricted non-British immigration while denying citizenship to non-European residents, marked an official rupture with Australia’s racist history. However, as Hage (1998) has argued, the ‘white nation’ fantasy prevails in subsequent multicultural policies built on tolerance of others, with ‘tolerator’ in a position dominant to the ‘tolerated’.

This ownership mentality is indeed apparent in Australia’s 2017 ‘Multicultural Statement’, where white Anglo-Celtic ownership is consolidated with reference to:

… the foundation of modern Australia through British and Irish settlement and the establishment of our parliamentary democracy, institutions and law. … Today, Australians welcome those who have migrated here to be part of our free and open society, to build their lives and make a contribution to our nation. (Department of Social Services, 2017, p. 7; emphasis added)

In line with Hage’s argument, this statement sustains the hegemony of a monoculturalist Anglo-Celtic framework while referring only superficially to Australian multicultural diversity.

From Hage’s perspective, the self-appointed governors of the nation ‘manage’ the boundaries of inclusion and exclusion while ‘celebrating’, permitting, or prohibiting cultural diversity in line with how much it conforms to the institutions, values and customs of the dominant Anglo-Celtic culture. Meanwhile migrants, some from non-liberal – not ‘illiberal’ (Parekh, 2006, p. 110) – religious frameworks, are constructed as ‘passive objects to be governed by those who have given themselves the national governmental right to “worry” about the nation’ (Hage, 1998, p. 17). In this context, the managers rank or attach unequal value to the cultures of managed groups (Humphrey, 2001, p. 37) and this has negative implications for the social and structural positions of some migrants that become difficult to shift.

A large proportion of the non-white mix of immigrants to which Modood refers result from periods of sizable Muslim migration to the ‘west’. For this reason, alongside heightened political and security surveillance after September 11, Modood (2013) and others (Lentin & Titley, 2012) have argued that Muslims have become central to political debates on multiculturalism and whether or not it is retreating, in crisis, or dead.

Muslims are also constructed as representing a deep and challenging diversity. They are racialised as much through their non-white national and ethnic origins, as through simplified elisions of their religious and cultural difference; a merger, as Lewis (2003, p. 877) points out, between ‘old notions of race as a biological characteristic [and] new notions of culture as a marker of difference’ (cited in Al-Faham & Ernst, 2016, p. 128). Further, Al-Faham and Ernst (2016, p. 128, citing Purkayashta, 2012, p. 62) assert that ‘Islam is treated as a religion that “promotes tendencies toward violence and terrorism” and … Muslim[s] are marked as having particular “phenotypes, cultures, nationalities and acts”.’ Hence racialising Muslims serves an ideological purpose. Razack (2007, p. 18), speaking of Shari’a in a Canadian context, argues that citizenship is based on an elusive notion of ‘modern’ liberal democratic values, while ‘pre-modern’ religious allegiance is attributed to Muslims.

However, noting that the racialisation of Muslims has marginalising effects does not amount to upholding moral relativism as a viable option. Those cultural or religious practices that are harmful or undermine the dignity of individuals should never be left unchallenged (Kymlicka, 1995). As Modood asserts in the British case (2008, p. 84): ‘the kind of multiculturalism appropriate to Britain must be in a context of human rights’. The disquieting margins of some cultural traditions raise concerns that multiculturalism may give space to fundamental human rights abuses. Violent Shari’a practices within fringe sects or regimes are often referenced as an example of these concerns.

This article analyses the Shari’a whipping in this light, while situating it at the margins of Shari’a practice and Muslim religious adherence. This marginality is significant, since it marks a limit case. We presently outline the media and political narratives to show that the whipping is not understood as a limit case but as an exemplar of what could happen if Shari’a was ‘permitted’ in Australia. The general reticence to understand Shari’a in its complexity as an alternative practice and normative code for culturally divergent groups exposes multiculturalism as a nominal political and policy framework that can only be committed to monoculturalist norms.

We will return to interrogating what it actually means to ask questions about the limits of multiculturalism; whether such a question pertains to the limits of moral and cultural diversity that can be tolerated by a ‘host’ society and its dominant culture and what is presupposed in asking this question. This leads to our central contention that each cultural framework invariably exposes the limits or the limitations of the other.

The broader research: ‘Testing the limits of multiculturalism’?

The authors’ attention to the Sydney whipping case was part of a larger collaborative project between 2012 and 2014 ² on everyday Shari’a practices, even though the research itself focused on the practice of Shari’a in everyday matters such as marriage, divorce and finance.

Any research into grassroots Shari’a adherence within generally unreceptive socio-political contexts necessitates an interrogation of some of its most contentious practices that are by no means representative or mainstream within Shari’a, but may lurk in its marginal interpretations; its ‘limits’ as identified by observant Muslims as well as broader normative socio-political and human rights contexts. While the research addressed the less controversial aspects of Shari’a practice (e.g. Possamai et al., 2015, 2016), the whipping case study provided opportunity to speak directly to the ‘limits’ aspect of the research. We later outline examples of the prevailing narratives that construct Shari’a as an intolerable practice beyond the boundaries of Australian multiculturalism.

Yet such research must also address the margins and limits, perhaps the limitations, of a version of multiculturalism that seeks to reject any alternative practices such as Shari’a. Acknowledging the uncomfortable margins of Shari’a draws attention to how individual deviant practices become understood as homogeneous, defining features of a group’s faith, and to the speed with which blanket prohibitions on any of its practices are suggested as a solution. Neither Shari’a nor Muslims are homogeneous, and homogenising Muslims and ‘their’ practices through isolated deviant incidents has racialising implications.

The project’s findings demonstrated that Shari’a is neither a homogeneous body of law nor an alien code that is necessarily incommensurable with dominant cultural norms, but a set of diverse, contested practices open to varying interpretations among different Muslim individuals and cultural communities in Australia and abroad. That said, the findings from the authors’ broader research into everyday Shari’a practices support Kamali’s (2008) aforementioned distinction between Shari’a as law and therefore the preserve of Islamic jurists or other figures of authority, and Shari’a as a personal moral, ethical and devotional framework.

Thus there was general consensus that Islamic law matters can only be decided by jurists, a Muslim judge, or a caliphate in the appropriate religious, social and political settings. Shari’a more broadly, as lived experience and a personal religious framework, is, as one participant commented, ‘between yourself and God’ (Interview, Muslim Community Leader 3, 2013).

Methodology and data

The data were gathered through qualitative interviews and fieldwork across western Sydney from 2012 to 2015. For the whipping case, the researchers accessed 382 pages of court transcript data and the unpublished judgements for conviction and sentencing, and conducted unobtrusive participant observation in the courtroom between 22 and 26 October 2012. ³ The legal documents contained witness evidence, plus legal and judicial deliberations on the issues of the case and various other points of evidence. For this article, the legal transcripts and the judgements are examined for remarks by legal counsel, the magistrate and key witnesses on the practices and interpretations of Shari’a by the perpetrators and their particular religious community, and more general practices of Shari’a in Australia.

To situate this case in a broader context of multiculturalism and the political construction of its limits, we refer to the trial and legal pronouncements in the broader social context as mapped through press coverage of the case. The press coverage includes the remarks of Australian politicians on this case and Shari’a more generally.

Legal narratives v. media and political narratives

A significant contrast was apparent between the legal rendition of events in the ‘whipping trial’, and media and political stories about the case. The legal story was generally at pains to distance the actions of the perpetrators from Islam, while the political and media narratives tended to elide the differences between everyday Shari’a practices, violent Shari’a and Islam. Yet apparent convergences also arose between the arguments of some legal actors and some political narratives which both, for different reasons, constructed the whipping as a faith-based intervention. Still, the comparatively unembellished legal presentation of facts about the violent practice of Shari’a leads to speculation that the case became newsworthy because of the politicised construction of Shari’a and Islam as a violent ideology rather than the objective level of violence inflicted. As one defence counsel observed in an interview: ‘the only significance of Islam is that it’s become a media story and it wouldn’t [have] otherwise’ (Interview, Barrister, 2012).

‘I’m doing this because I love you’: R v. Raad, Fayed, Cifci and Coskun

Between 16 and 17 July 2011, Muslim convert Christian Martinez was whipped 40 times with an electrical cable by four men who were practising their interpretation of Shari’a discipline. All four men were tried in a New South Wales court, and convicted of assault occasioning actual bodily harm in company.

Martinez had been proselytised, spiritually mentored and instructed on the conservative lifestyle associated with puritanical Islam by a man named Wasim Fayed (aka Brother Fadi). Martinez saw Fayed as a saviour; before his conversion to Islam he had a chequered history with drugs and alcohol and had been in trouble with the law. Fayed, alongside his cohorts, Raad, Cifci and Coskun, identified as a member of the ultra-conservative Ahlus Sunnah Wal Jamaah (ASWJ) Association of Australia. All attended Omar Mosque, run by a local Imam, Sheikh Omar El Banna, which espoused teachings consistent with the conservatism of ASWJ.

Members of ASWJ (in Australia and abroad) adhere to the strict, literal and puritanical Salafi movement in Islam, generally viewed as akin to the ultra-conservative sect of Wahhabism practised in Saudi Arabia and associated with punitive corporal brutality. Many Muslims reject both Wahhabi and Salafi movements (Valentine, 2015), but it should be noted that these movements are not the same (for definitions see Griffel, 2015; Lauziere, 2016). Such sects are situated at the margins of Shari’a, even though popular narratives tend towards associating all Shari’a with the extremes advocated by Wahhabism. In court, ASWJ was defined vaguely as: ‘a group, part of the Islamic faith. It’s a club or something to that effect’ (T [Transcript] 22/10/12, p. 11, lines 47–48). Given the marginality of ASWJ, the Crown, from the beginning of the trial, distanced the actions of the perpetrators from the ‘Islamic faith’ as an aberration, and marginal, rather than as the norm within Islamic religious practice (T 22/10/12, p. 6, lines 39–42):

I should also say … this is not a hearing about the Islamic faith. This is a hearing about four accused’s belief, their own belief … they took out what they deemed or felt was appropriate on Mr Christian Martinez.

On 15 July 2011, given the pre-existing relationship between the victim and Fayed, Martinez felt compelled, in a state of distressed intoxication, to telephone Fayed and ask for psychological and spiritual assistance. Fayed consoled him, told him to leave his front door open and said: ‘Yeah it means I’m going to tie you up brother, that’s what I’m going to do … because now you need this level [of intervention]’ (T 22/10/12, p. 8, lines 26–30). Fayed immediately called one of the co-perpetrators, Raad, and instructed him to attend Martinez’s premises to see if he needed medical attention.

Shortly afterwards, Martinez was shaken awake to see Fayed, Raad and two unfamiliar men (Cifci and Coskun) standing before him in his bedroom. He was informed that in accordance with Islamic law, he was going to be lashed 40 times ‘to remember never to drink or take drugs again’ (T 22/10/12, p. 46, line 37). Two sets of 10 lashes were administered where Martinez was given a break in between to vomit due to a combination of pain and intoxication. Cold towels and words of consolation were offered between lashings (T 22/10/12, p. 50, lines 16–19):

And I kept saying, ‘No more, I don’t want anymore, don’t want anymore.’ So they said, ‘Do you see Christian [Martinez] this is how your body has been cleansed … Allah’s taken all the impurity out of your body and you’re vomiting and you know you’re being cleansed.’

The court was also told that Fayed cut the loops on the ‘whip’ to lessen the pain, before proceeding to flog the victim a further 20 times without break. Martinez tried to escape, only to be stopped and consoled (T 22/10/12, p. 55, lines 27–31):

[Fayed] started talking to me and saying, like, ‘You know I love you Chris you know I’m only doing this because I love you … the next time you drink alcohol and take drugs you’re going to remember this you know, and you won’t want to drink … I’m doing this ’cause I love you.’

Meanwhile the co-perpetrators disposed of all the remaining drugs and alcohol on the premises.

A key theme in the defence argument for Fayed was that he was puritanical, following a literal and classical interpretation of the Qur’an with little to no room for movement for a more modern, moderate or contextualised understanding. According to the defence narrative, Fayed’s practice of Shari’a directly correlated with his broader interpretation of Islam:

In this way, defence aimed to mitigate the offenders’ actions by seeking to demonstrate the well-intentioned, if slightly irrational, adherence of the perpetrators to a puritanical Shari’a code. By contrast, the prosecutor’s efforts to dissociate the actions of the accused from the ‘Islamic faith’ contradicted the arguments on which the defence built its case. This was a key point of tension within the legal narratives, which fed into wider understandings of the case as an example of violent Shari’a.

At another point during the flogging, Martinez asked his attackers to call Sheikh Omar to confirm whether he ‘deserved’ such punishment. Failing to make contact with the Sheikh, one of the co-accused consulted a website on his mobile phone and read from it that the standard punishment was in fact 80 lashes and only the sick or infirm would receive 40 blows (T 22/10/12, pp. 52–53):

And then male 1 got on his phone and he started reading … ‘The person who is intoxicated, drinking alcohol he’ll get like eighty lashes’ right, ‘And someone who is sick is only entitled to forty lashes.’ And then Fadi said, ‘Look we’re only going to give you forty …’ (T 22/10/12, p. 53, lines 2–7)

The perpetrators’ reliance on a website is noteworthy. An online source can only be a rudimentary substitute for the more complex, specialist guidance given on such issues by Islamic scholars, Imams or Sheikhs.

In the broader project, interviewees from a sample of Imams, when asked about this case, variously indicated that flogging for drinking alcohol cannot be implemented outside of an ‘Islamic State’ (Interview, Sydney Sheikh, 2013), in the absence of a ‘caliphate’ (Interview, Muslim Community Leader 1, 2013) and, if it were to be implemented anywhere, then the matter would need to be decided by a Muslim judge trained in Islamic law (Interview, Muslim Community Leader 1, 2013). ⁴ Significantly, one participant summed up the overarching view of most interviewees, that ‘there’s a very strong Shari’a position that you basically should follow the law of the land that you live in’ (Interview, Muslim Community Leader 2, 2013). Such findings contradict mainstream perceptions of Shari’a as essentially at odds with the Australian secular legal system.

Hence, in the current case, it is fair to assume that the men who perpetrated the whipping were found to be acting out of step with broader interpretations of Shari’a in Australia. In the trial, Sheikh Omar’s witness statement disavowed the whipping as an acceptable punishment for drinking alcohol and censured the actions of Fayed and his co-perpetrators:

Martinez said … ‘I have been purified, they applied the Sharia Ruling on me. Is it right to apply Sharia law to me?’ I said … ‘This is ridiculous. You can’t apply this ruling, this is wrong …’ As scholars of Islam from the Imam’s Council we made a press release … the actions taken by the males involved were not sanctioned by the community in any way. Furthermore it is my belief and the belief of the community that their actions were not authorized by any Imams or religious leaders. (R v. Raad, Fayed, Cifci and Coskun, 28 February 2013, p. 24)

No further evidence about Shari’a practices in Australia was called in the trial. While Magistrate Maloney remarked that he had been compelled to do his ‘own research’ on the matter of whipping as punishment for drinking alcohol (2013, p. 24), ⁵ he ultimately relied on Sheikh Omar’s evidence, calling Fayed’s actions a ‘perverse’ and incorrect interpretation of the Qur’an (2013, pp. 9–10):

… [Fayed] held his own belief of what Sharia law is and how punishment according to the Islamic faith was to be implemented. That belief is contorted and totally inconsistent with the Qur’an and according to Sheik Omar and local Islamic elders completely wrong.

All of the men were convicted of assault occasioning actual bodily harm and the ringleader, Wasim Fayed, received a custodial sentence of two years, while the three co-perpetrators each received suspended sentences of 18 months and 200 hours of community service orders for their involvement. The offences, Maloney concluded, were ‘towards the middle end of the range for such offences’ (2013, p. 6).

Muslims in Australia

Legal judgments aside, social and political discourses around Shari’a in Australia gave the violence of the whipping a wider meaning that reached into debates around multiculturalism, legal accommodation, Muslim immigration, criminal justice and punishment. Although there is no shortage of examples to indicate that Muslims in Australia are marginalised (see Poynting & Noble, 2004), the structural and political position of Muslims in Australia ensures that few Muslim voices are able to counter the dominant construction of Islam and Shari’a as aberrant normative frameworks.

Australia has a culturally diverse demographic with a sizable Muslim population from a range of national, ethnic and cultural contexts. Muslims have had a longstanding presence in Australia’s settlement history, and post-Second World War, the Muslim population in Australia increased significantly in response to an economic need for migrant workers to boost insufficient labour resources and to consolidate Australia’s ‘positioning in a global capitalist world’ (Wise & Ali, 2008, p. 12).

By 2011 (Australian Bureau of Statistics [ABS], 2011), 2.2% of the Australian population identified as Muslims either born in Australia or immigrants from Lebanon, Turkey, Afghanistan, Pakistan, Bangladesh, Iraq, Indonesia or ‘Other’ – ABS shorthand for a host of other nations. As Saeed notes (2003, p. 1), Australia’s Muslims arrived ‘from more than 70 countries’ with Sunni Muslims making up the majority, Shi’a groups in a sizable minority, and within the Sunni tradition, a small minority of Wahhabis and other fringe sects and ideological groupings (Ali, 2016, p. 155).

Writing in 2003, Saeed (2003, p. 2) observes that the majority of Muslims in Australia are working-class with only 27% in ‘the categories of professionals, managers and administrators and technicians’. Over a decade later, significant inequalities remain with Muslim-Australians being less likely to own a house, more likely to have higher rates of unemployment, or be paid less and have lower status jobs despite relative education levels (Hassan, 2015, p. 15). According to Hassan (2015, p. 15), Muslims ‘are more likely to be unemployed, living in poverty or in prison’ and this betrays the reality of ongoing and ‘widespread discrimination against Muslims both face-to-face and through employment practices and the criminal justice system’.

Moreover, the degree of diversity within the Muslim population in Australia inevitably results in some fragmentation in relation to religious practices. This, combined with the continuing political suspicion of Shari’a and the structural disadvantage of Muslims, ensures that there is little prospect for the institutionalisation or regulation of Shari’a practices in Australia. As one interviewee, an Imam, indicated, the whipping incident was one example of Shari’a as outside of ‘the system … it’s more people creating their own system, their own punishments’ (Interview, Muslim Community Leader 3, 2013). Another interviewee suggested many elements of the Muslim community ‘take the law into their own hands’ (Interview, Muslim Community Leader 4, 2013). These comments by Muslim community leaders and Sheikhs imply that administering a whipping in the name of Shari’a is a marginal and unacceptable limit of Shari’a practice in Australia.

A second glance at Sheikh Omar’s testimony also shows how it speaks to the broader political environment as a way of distancing the faith and the community from the damaging publicity that representations of violent Shari’a could cause. This is characteristic of the damage control engaged by Muslim community representatives in response to the negative publicity and conservative politicking that constructs Islam and Shari’a as a homogeneously violent ideology.

Yet, what of the speculation that some fringe factions within Islam and within Muslim communities in Australia are not peaceable in their observation of Shari’a? Of course this could be as true for segments of Australian-Muslim communities as it is for any other cultural or religious community in Australia or abroad. For example, the aforementioned ASWJ organisation might be seen as one of Shari’a’s conservative extremities. More broadly, the violence expounded by followers of the Wahhabi or Salafi sects in Islam might be another example. Such belief systems, ideologies and practices within certain factions in Islam, represent the uncompromising margins or limits of Shari’a practices in both Australia and abroad.

Furthermore, within any cultural framework, persistent exclusion, structural disadvantage and discontent can become a self-fulfilling prophecy, motivating the most disenfranchised members of marginal communities to form anarchic and rogue associations. This has been posited as one way of garnering cultural or sub-cultural capital in the face of unrelenting marginalisation and disenfranchisement (Collins, Noble, Poynting, & Tabar, 2000, pp. 166–167). Such rogue associations may either use religion as a front for criminal acts, or become drawn towards ever more radical forms of religious interpretation as a form of resistance or self-empowerment. Additionally, a political environment that fails to formally recognise and legitimate Shari’a as significant for Muslims in Australia ensures a lack of training for Shari’a practitioners and consequent inconsistencies in how Shari’a matters are decided, contributing to the ad hoc and fragmented practice of Shari’a in Australia.

At this point, we interrogate what it means to ask questions about the limits of multiculturalism when referring to Shari’a law. Here we reflect on the fragility of multiculturalism in Australia while interrogating the strength of Australia’s commitment to multiculturalism when mainstream political discourses dismiss most Shari’a practices as incommensurable with the dominant cultural framework.

The Shari’a whipping case and ‘questions about Muslim immigration’

The whipping case encapsulated the general discomfort towards Shari’a practice in Australia while affording credibility to dominant representations of Shari’a as a set of violent and extremist practices associated with pre-modern corporal punishments. Although objectively a minor crime tried in a summary jurisdiction, the whipping administered by a few rogue individuals – shunned by broader Sydney Muslim communities – provides weight to conservative arguments about the moral slippery slope of Shari’a imported to western liberal democracies via Muslim immigration.

In this context, the whipping case was certain to be newsworthy. Various Sydney newspapers carried headlines of a Shari’a whipping punishment case towards a Muslim convert (Australian Associated Press, 2011, p. 3; Gardiner, 2013, p. 2), reinforcing conservative tropes about the moral dangers of Shari’a. The case also captured the interest of international press outlets and websites. ‘The assault has raised community concerns about the application of sharia or Islamic law, by some people of Islamic faith in NSW’, claimed the New Zealand based Taranaki Daily News (‘Sharia Whipping Arrest’, 2011, p. 8), while the online Asian News International (2013) reported the case as ‘the first of its kind in Australia’. An Agence France Press (2011) story referred to Fayed once praising ‘Osama Bin Laden as … a “soldier of God” who … “is now in paradise” ’ before stating that the case ‘sparked outcry in Australia, with [former] Prime Minister Julia Gillard condemning the attack’.

As evinced in these narratives, representations of Shari’a focus on the brutality of classical punishments meted out under the regime of Hudud offences. ⁶ Further, a link between Shari’a and Islamic extremism is established in the mention of the ringleader’s admiration for Osama Bin Laden. The case was also upheld as evidence of ‘Islamification’ in far-right websites in Australia and abroad. One far-right US website described the ‘Muslim filth jailed for dishing out 40 lashes’ (LiveLeak, 2013) while the far-right Australia First Party website stated:

In backward Islamic countries, drinking alcohol is against islamic ‘sharia law. … These backward barbaric muslims think they can bring their backward barbaric laws with them to Australia when they immigrate. … Islamic sharia law is a scary impost to civilised societies like Australia’s. (Australia First, 2012)

Racist tirades aside, Australian debates on Shari’a are varied. They encompass a spectrum of political narratives from conservative and far-right nationalists calling for a restriction or ban on Muslim immigration to prevent the import of Shari’a into Australia, to moderate liberal multiculturalist views that unequivocally locate Shari’a beyond the limits of tolerable cultural diversity and religious practice. The moderate voices have included commentary from judicial figures such as former Australian High Court Chief Justice the Honourable Sir Gerald Brennan, and former New South Wales Chief Justice Jim Spigelman. Both have indicated there is ‘no room’ for Shari’a in the Australian legal system, with Brennan stating that suggestions ‘some parts of Islamic Sharia law might operate as Australian law’ were ‘misconceived’ (Brennan, 2012), while Spigelman said: ‘I can see no basis for any form of religious intrusion – whether it is Islamic, Jewish or Christian principles – in our formal legal process’ (Merritt, 2011). Additionally, one press outlet quoted former Prime Minister Gillard’s condemnation of the Shari’a whipping attacks: ‘There’s only one law in this country, the law of Australia … everybody’s got to abide by Australian law’ (Agence France Press, 2011).

More recently, in a televised debate on migration aired on an Australian political discussion programme, Q&A, independent conservative senator Jacqui Lambie echoed Gillard’s statement: ‘The fact is we have one law in this country and it is the Australian law — not sharia law’, adding: ‘anyone who supports sharia law in this country should be deported’ (Q&A, 2017). This resulted in a heated public altercation with a Muslim panellist of Sudanese background, Yassmin Abdel-Magied, who questioned Lambie on her knowledge of Shari’a before declaring ‘in sharia it says you follow the law of the land you are on’ (Q&A, 2017).

Reinforcing these themes, former Australian Federal Immigration Minister Chris Bowen delivered a speech on multiculturalism in 2011 and stressed that Shari’a is incompatible with ‘Australian values’. Bowen spoke of the ‘age of concern about terrorism inspired by extremist Islam’ that made it ‘inevitable that questions get asked about Muslim immigration to Australia’. He explicitly linked this to Shari’a practices by stating: ‘Of course, anyone who comes here – or indeed if anyone born here – promotes values such as Sharia Law or religious intolerance or violence, they do not do so in the name of multiculturalism’ (Bowen, 2011).

Conflating Shari’a with religious intolerance and violence is common in popular narratives on Shari’a, functioning to position Muslims and their diversity and intolerance of the dominant culture as ‘intolerable’ (Lentin & Titley, 2012). Even in multiculturalist narratives that extol diversity and inclusiveness, Shari’a is constructed as colliding with multiculturalism and fundamentally challenging its boundaries. As Hage (1998) argues, there is a structural continuum between liberal pro-multicultural ‘tolerance’ and violent racism; it is simply the difference between practices of ‘good nationalism’ and ‘evil nationalism’. This explains why liberal multiculturalist and nationalist voices frequently converge as they adhere to ‘an image of the White Australian as a manager of national space’ (Hage, 1998, p. 91), who claims the right to define what is in/tolerable. In this context, Shari’a practice is constructed as a deep religious and cultural diversity and an exercise of cultural will that strays too far from what is ‘tolerable’ to Hage’s ‘good nationalists’. Put another way, Shari’a is ‘an abuse’, as Ahmed (2008) says, of the nation’s ‘multicultural love’, and Muslim ‘migrants [thus] enter the national consciousness as ungrateful’. Ahmed’s argument eloquently speaks to the ethos of collective punishment behind conservative suggestions to deport all Muslims, for the misdemeanors of a few.

Further, what Hage’s ‘white managers’ consider in/tolerable in the context of Shari’a does not necessarily rely on knowledge and nuanced interpretations, but hyperbole. As Possamai, Turner, Roose, Dagistanli, and Voyce (2013, p. 629) argue, there is a ‘generic ignorance that shrouds popular understandings of Shari’a’ and as is often the case in mainstream political narratives, there is a discursive slippage between the largely peaceable practices of Shari’a and its violent edges as manifested in the extreme examples of Wahhabism. Such a slippage validates those suggestions to deport Muslims who practise Shari’a.

Unsurprisingly, this socio-political environment compels consistent apology and explanation from Australian Muslim community figures when individual Muslims transgress boundaries. Public commentary on the whipping case by some high-profile Muslims sought to dissociate the actions of the accused from Shari’a, Islam and other Muslims in Australia, echoing Sheikh Omar El Banna’s courtroom testimony. In one example, Keysar Trad, founder of the Islamic Friendship Association and a well-known Sydney Muslim activist and spokesperson, told the Sydney Morning Herald (Gardiner, 2013, p. 2): ‘The Islamic faith does not allow any person to take the law into their own hands. Muslims … have no right to punish anyone.’ In earlier coverage, the executive director of the Forum on Australia’s Islamic Relations, Kuranda Seyit, told the Herald (Burke & Olding, 2011. p. 3): ‘If these men did what was alleged, then they have no understanding of sharia and should be discouraged.’ In the same article, Sheikh Taj el-Din Hilaly, former Mufti of Australia and a Sunni Muslim religious figure, mobilised the conservative links made between multiculturalism, immigration and violent crime, suggesting the men be ‘assessed for a mental disorder and if found guilty … be deported’ (Burke & Olding, 2011, p. 3).

These narratives of apology for the violence of a few suggest the tenuousness of Muslim belonging within the framework of Australian multiculturalism. The act of apologising for a rogue or marginal (mis)interpretation of faith becomes, in this context, a reaffirmation of the social positioning of Muslim-Australians as ‘intolerable subjects’ (Lentin & Titley, 2012) who, by default, become those who push the limits of multicultural tolerance. Shari’a is central to this discourse.

Conclusion: The limits and limitations of Shari’a and Australian multiculturalism?

The Shari’a whipping case demonstrates how pre-modern punishments sit at the marginal limits of Shari’a practice among Muslims in Australia, bumping up against the extremes of what Muslims in Australia find an acceptable religious practice. Violent Shari’a, then, represents a limitation within Shari’a itself and the vulnerability of such a framework to harsh and unforgiving interpretations that are unacceptable to most Muslims in Australia (and elsewhere), as well as within wider normative frameworks in which violence is shunned.

However, representing Shari’a as inherently violent while eliding its largely peaceable practices has become a useful political device to justify populist immigration sanctions with a particular focus on halting immigration from Muslim majority countries. Hence, Shari’a is often upheld as an exemplar of alien values that modern western liberal states should never be compelled to accept or tolerate; it is the ‘excess of culture’ ⁷ that inhabits the beliefs and practices of ‘intolerable’ Muslim subjects who have pushed the ‘multicultural experiment’ too far away from the national ‘essence’ (Lentin & Titley, 2012, p. 126). Within this discursive space, incidents such as a Shari’a whipping are constructed as evidence supporting the Muslim refusal to integrate; integration being posited as the minimum requirement of successful citizenship in western liberal democracies (see Poynting & Mason, 2008).

The violence of a few, in the whipping case, is therefore understood in terms of multiculturalism ‘having gone too far’, demonstrating the readiness to represent as deviant entire cultural or religious groups. While much of the legal discourse was at pains to distance Islam from the actions of the perpetrators, other parts of the legal narrative reinforced the link between Islamic religious adherence and whipping individuals for drinking alcohol.

Yet, if cases like the whipping are so readily upheld as evidence about the ways in which Muslims and Shari’a push the limits of tolerable diversity, then Australian multiculturalism is tenuous; it is not multiculturalist in its normative response to diversity but, rather, monoculturalist in its ethos (Parekh, 2006, pp. 6–7). Additionally, suggestions of deportation in the face of Shari’a understood short-sightedly as inherently violent further exposes the fragility of Australian multiculturalism, its limitedness and limitations. This demonstrates the ‘non-performativity’ of multiculturalism in the Australian context; it does not bring into being the support for the cultural difference that it suggests (Ahmed, 2008).

This is the main symptom of Australian multiculturalism’s ill health, as is also apparent in other contexts. Multiculturalism may not be dead, but its frailty is exposed in its limited ability to provide a hospitable environment for peaceable religious and cultural practices and the requirement for constant apology, explanation and proof from Muslims of their commitment and loyalty to the Australian nation. If it is incumbent upon the dominant culture to call out the extreme manifestations of Shari’a as the immoderate limits of a religion or culture, then we ought to name also the extremities and limits of multicultural policies that currently fail to apply a spirit of inclusion, understanding and hospitality to groups that live by a different, though not incommensurable, normative framework.