The Dangers Of Integrating Religious Values Into Legislation

On numerous occasions my inbox has been deluged with emails touching upon the topic – although some would say ‘myth’ – of feminism and Islam. More recently, I received an e-mail from Kimm, commenting on the shabbiness of life, that spoke of religion’s capacity to instigate ‘ugliness’ and ‘division’. His words are not without merit. What I would like to examine, however, is some of the anomalies that arise as a result of so-called religious values being integrated in legislation.

A short awhile back, I happened to come across an old Federal Court of Australia case - Moradgholi v Minister for Immigration & Multicultural Affairs [2000] FCA 13 (12 January 2000) - dealing with an appeal from a Refugee Review Tribunal (RRT) decision affirming the refusal of a protection visa. The woman in question happened to be an asylum seeker from Iran. Her circumstances were both compelling and highly unusual. More specifically, she faced criminal charges in Iran for (a) adultery; (b) selling alcoholic drinks; and (c) the production and distribution of pornographic videos.

Iran in an Islamic nation in which aspects of Shari’a law and Quranic teachings are moulded into the criminal code. More often than not the winners are men. This statement, although broad, is not meant to be of the ‘blanket’ variety. The proposition holds greater weight when examined in reference to sexual assault and women’s issues.

The Federal Court accepted that the applicant’s husband had been executed following a drunken brawl with Revolutionary Guards in 1981. He was conveniently labelled a ‘counter-revolutionary’ and shot within weeks of the actual altercation. At the time of the court hearing he was survived by the protection visa applicant and her two children, both of whom were aged in their twenties and residing in Iran.

Following her husband’s execution the applicant’s life essentially took a downhill course. Having been found to hold counter-revolutionary views herself, she was barred from holding employment in either private or public office. Consequentially, she became highly dependent on charity from family and friends. In time though, she began earning an income through illegal forms of employment. Here’s a brief outline of the events that transpired in her life following the death of her husband:

• 1985 – The applicant met a man who paid some of her expenses. She went to his flat regularly. One day the Revolutionary Guards arrived and arrested them. Following an interrogation session in the presence of "Mullahs" their story of being ‘friends’ was not believed. The applicant was convicted and received 100 lashes. She was convicted and sentenced to 100 lashes. There was no evidence presented before the court hinting at any punishment being dealt to the male friend.
• 1986 – The woman began selling alcoholic drinks from her home to earn an income. Once again, she is convicted and sentenced to 100 lashes.
• 1991 – The applicant met a Christian man who induced her to perform in pornographic videos. She wished to pay him back for money he had leant her to undergo surgery to relieve stomach pains arising out of an abortion she had undergone in earlier years. She appeared in the movies twice for ten minutes each. In the movies she took off her outer clothes but kept her undergarments on and did not touch, and was not touched by, any other person. The movies were used as an interlude between other X-rated movies.

Both the RRT and the Federal Court found that that there was a real chance of the applicant facing charges of being involved in the production or distribution of obscene videos if returned to Iran. The ultimate penalty for this offence was death.

The Federal Court of Australia affirmed the decision of the RRT noting that law enforcement of a general nature cannot, without more, constitute persecution for a Refugee Convention ground. This is the case even where the said law reflects and even enforces a set of religious values. For example, consider the case of Lama v Minister for Immigration and Multicultural Affairs [1999] FCA 1620 (FC). In this case the protection visa applicant had slaughtered a cow in Nepal, a criminal act which attracted a jail term of some 12 years. The Full Court of the Federal Court of Australia recorded that the RRT made the following findings:

(i) The law against bovicide in Nepal is a law of general application, its terms applying equally to all persons within the country, Hindu or not, Nepalese or not.

(ii) The Nepalese law against bovicide does not demand or prescribe compliance with other Hindu beliefs or practices. It merely requires that people do not kill cows. Nepalese law permits people in the country to buy and eat imported beef.

(iii) There was no evidence of intent or motivation to harm either non-Hindus or Hindus for reasons of their religion in the letter or enforcement of the relevant Nepalese law.

(iv) Neither the Nepalese Constitution nor Nepalese laws amount to a dictate of Hindu religious values over the appellant. While the Constitution could be seen as having been built to a degree on Hindu-informed traditions respecting life and personal property, the `religious laws' were motivated by a desire to keep the peace among various religious streams in the country.

(v) The appellant killed the cow because he was hungry and wanted meat. His actions did not constitute the expression of a religious conviction nor of a desire to give effect to notions of religious freedom.

(vi) The RRT was not satisfied that the law and courts in Nepal would be remotely concerned with the appellant's beliefs or affiliations except to entertain arguments as to ignorance or other mitigating factors raised by way of defence to the purely criminal charges against him.

(vii) The appellant had not publicly advocated any change to the bovicide laws in Nepal. He would not be perceived as advocating any such charge by his acts in 1994. While there was some political controversy in Nepal about the bovicide laws in 1996, the appellant was not and would not be linked with that controversy.

The Full Court then noted that the grounds of attack to the RRT decision were as follows:

1. the RRT should have found that the reason underlying the law against bovicide in Nepal was the tenets of the Hindu religion;
2. the threat of imprisonment for violation of a law designed to protect Hindu religious values was a threat of persecution for reasons of religion; and
3. a risk of persecution pursuant to a law enacted for reasons of religion does not lose its character merely because the persecution takes place pursuant to a law of general application.

Well, that seems to make sense. The Full Court in Lama did not seem to agree though. While accepting that laws against the killing of cows were consistent with endorsing values of the Hindu faith (it later seemed to the Full Court that this ran counter to the RRT's finding on this issue) the primary judge thought that this did not mean that such laws targeted members of the society who did not adhere to that faith. His Honour described that which was governed by the law as the act of killing a cow, not the religious beliefs of the killer, and that the act was "neutral conduct in the Convention sense".

Interestingly enough, counsel for the visa applicant in the present case (ie the Iranian woman) did not suggest that there was evidence or a submission before the RRT that the anti-pornography law, while doubtless expressing Islamic values, was intended to impose the religion of Islam itself on non-Muslims. However, even if that point had been made, it would have been circumvented through the following reasoning:

"The law in question, like the anti-bovicide law in Lama, was directed against acts inconsistent with the religion of that theocratic society. It would apply indiscriminately to, for example, a Christian within the territorial boundaries of Iran, but not because that person was a Christian, and there would be no attempt to proselytise that person, whether or not he or she complied with the law."

The Full Court also refused to accept the applicant’s argument that as a woman (ie member of a particular social group) she would be more hotly pursued for her morality infringements than a man. This was in spite of ample country information highlighting gender inequality in Iran’s constitution – namely with respect to the Iranian government’s enactment of the Islamic Penal Code and enforced interpretation of the Shari’ah. The impact of these two sets of laws is that men and women are treated differently, resulting in human rights abuses that disproportionately affect women. Under the Iranian Penal Code, death by stoning is a method of punishment for adultery and other sexual offences. While men and women are subject to the same punishment, this Penal Code provision discriminates against women because in Iran women are more readily accused and convicted of adultery because of the patriarchal culture and sexist legal system. The patriarchal culture makes women more vulnerable to prosecution because women occupy fewer decision-making positions than men. Additionally, Islamic law itself makes women more likely to be convicted because evidentiary rules decline to give weight to a woman's testimony.

So, at the end of the day I guess the court decided that if everyone gets treated like shit than there is certainly no ‘discrimination’ or ‘persecution’ taking place. Well, not for a Refugee Convention reason. So, if you happen to be Iran and face criminal sanctions that would see the imposition of 100 lashes for drawing a stick woman with breasts, don’t even bother seeking asylum in Australia. The same is true if you’re a woman accused of having committed adultery. Depending on which part of Iran you’re in, the punishment dealt out can be as severe as being stoned to death.

If you happen to be an unwed woman who has been accused with adultery then, as a standard of proof, the Cadi (ie judge) can require that the woman pass an examination to find out whether she is still a virgin. If the woman is not a virgin, she is assumed to be guilty.

Does anyone remember receiving those weird brochures in Year 7 which smoke about the transition to adolescence etc? There would always be one particular section talking about how girls/women could tear their hymen through various activities, the two most notable always being horse-riding and gymnastics. I wonder whether similar literature is available in Iran or, more specifically, made available to the Cadi.

To summarise, in order to be persecuted for a Refugee Convention reason you must should that the law under which you face punishment is being applied to you in a discriminatory fashion. So, if there happens to be a law which forbids breaking wind in public, with the ultimate penalty being death, and you happen to breach it, expect no recourse from Australian courts.