In December of 2004, Judge Michael Higgins, presiding at the Victorian Civil and Administrative Tribunal, found Pastors Daniel Scot and Danny Nalliah guilty of inciting religious hatred against Victorian Muslims. This was a historic case, the first finding of religious vilification under new Victorian legislation.
The case of the Islamic Council of Victoria v Catch the Fire (pdf file 324KB) is a complex one. On the one side it is said to be about vilification of Muslims. On the other side it is said to be about freedom of speech, and in particular the freedom to publicly criticise a religious ideology. The case marks a significant translation of concepts of race into the realm of religious identity and belief. As such it deserves to be studied carefully.
One aspect of Judge Higgins’ findings which seems especially likely to provoke controversy is his approach to witnesses’ credibility. Broadly speaking, His Honour found that all seven witnesses for the complainants could be relied upon, but in one way or another he rejected all the five witnesses for the respondents, and refused the respondents’ requests to call two additional expert witnesses.
His Honour’s treatment of Pastor Daniel Scot, one of the respondents in the case, deserves careful scrutiny. Daniel Scot had given a seminar about the Koran which became a principal focus of the complaint before the Tribunal. In considering whether Scot had vilified Muslims, the issue of his integrity proved to be critical. Judge Higgins found that Scot was not “credible”. He stated concerning Scot, “I have considerable doubt that what he told the seminar were his real beliefs about the Koran”. In other words he seemed to be lying. His Honour also found Scot to be opportunistic and unbalanced in his method of teaching, that he selected material because it conveyed a bad impression of Muslims.
Judge Higgins considered that because of his lack of credibility Scot could not be considered to have acted “reasonably and in good faith”. This meant that Scot had no protection from the religious exception in the Act, which protects conduct which is conducted for a “genuine” religious purpose, “reasonably and in good faith”.
Judge Higgins cited two examples of Scot’s dishonesty. One was Scot’s report that he had written three books, when in fact these were works in progress which he distributed at his seminars in photocopied form, under his birthname Sidiqqi rather than his assumed name of Daniel Scot. Scot would not be the first author to self-publish using photocopying, to consider his books works in progress, and to use a nom de plume. However of much greater interest is the second instance of Scot’s allegedly dishonest behaviour.
Mercy for amputees?
As second example, Judge Higgins cites Scot’s discussion of the penalty for theft. Under cross examination, Scot had said that only after a thief’s hand is cut off (Sura 5: 38) is he to be shown mercy (Sura 5:39). His Honour describes Scot’s discussion of this as “astounding”, and his reasoning “illogical and unsustainable”. He comes to this view based on an assertion from the bar table, and without hearing any evidence that Scot’s interpretations were wrong.
The matter arose because it had been put to Scot by counsel for the complainants that he could have drawn his audience’s attention to Sura 5:39 to balance the interpretation of 5:38. In other words, his listeners could have been informed that the Koran could be read more sympathetically, that the mercy of 5:39 might reduce the penalty of 5:38.
As it happens, Scot’s interpretation of this passage is traditional and quite accurate. Hadiths (canonical written traditions about Muhammad’s life and teaching) place these two verses together in a specific “context of revelation” (asbab al-nuzul): they were “revealed” during an incident involving the punishment of a female thief during Muhammad’s lifetime.
The hadiths which support this interpretation (see for example firstname.lastname@example.org) make crystal clear that mercy is to be applied after amputation. Muhammad even declares that if his own daughter Fatimah had stolen something, he would have her hand cut off.
This is an example of a theological principle relating to Islamic hudud punishments, that the penalty atones for the crime. After punishment the person is considered purified and free of the offence, acceptable to Muhammad and to God, in this life and the next, and thus a worthy recipient of kind treatment. Indeed the hadiths relating to these verses describe how Muhammad showed kindness to the female thief after her hand had been amputated. The correct interpretation of verse 39 is that Muslims should treat amputated thieves with kindness and mercy, as long as they have repented after punishment, and do not steal any more. Scot’s teaching in the seminar and his replies under cross-examination hold up very well.
His Honour’s apparent confusion over this matter is apparent when he further reports, “Verse 40 then spells out punishment of a severe kind, e.g. losing a leg, for a further offence”. In fact verse 40 says nothing of the sort, and the only reference to this verse during the hearing was that Scot had made a mark against it for some reason in his copy of the Koran. It is puzzling to say the least how His Honour could have come to this conclusion about verse 40.
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