Australian Islamist Monitor

Islam Under Scrutiny

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The sword of Lady Justice

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Credit where due, the English did develop a fine legal system, one based for the most part on fairness and rational thinking. So it is very sad indeed to report that this too has now fallen victim to the demands of Sharia law.

The recent English court case of The Investment Dar v Blom has formally accepted the argument that an English law contract can be deemed unenforceable on the basis that it is not Sharia compliant. No doubt the Law Lords of years gone by, some of the finest legal minds there ever were, are turning in their hellfire.

Background
In a nutshell, Blom provided US$10.7 million to TID to invest by way of a Wakala Agreement. Under this arrangement the principal amount was to be repaid to Blom along with a guaranteed profit and, to the extent that additional profit was made, TID could keep it. Sounds fine for TID but for the intervening global financial crisis and TID did most of the dough. It is now trying to weasle out of the contract by arguing in an English court that the Agreement is unenforceable because it is not Sharia compliant.

The grounds for non-compliance are due to Blom not taking its share of risk and, as profit and the return of capital was guaranteed, the profit was in the form of interest. In theory and Islamic propaganda parties to a Sharia finance contract should share risk (and this has been naively gobbled up by the Australian Government). In reality though the risk is always removed, as in this case, and the Agreement is simply what we would call 'lending for investment purposes'.

The English court though is prepared to accept expert evidence and analysis of the Agreement's Sharia compliance. It is pending appeal and a decision on this point.

The technical argument from TID is that its constitution does not permit entering into non-Sharia compliant agreements and thus the agreement was ultra vires - beyond its powers. This is notwithstanding TID's Sharia supervisory board signing off that the Agreement was Sharia compliant. Farcicly TID is arguing that they were in fact wrong.

Analysis of the case
Some legal commentators claim that the ultra vires argument and the fact that TID was a Kuwaiti company means it is just a matter of determining legal capacity and is not applying Sharia law in Britain (a question of fact for the court rather than a question of law). Others think the latter but find it all very exciting and about time, including one of the lead counsels in the case.

I'll look at it logically. An English court will determine if a contract is enforceable based solely on whether the contract is consistent with the principles of Sharia. If the contract is Sharia compliant it is enforceable against TID, if it is not Sharia compliant, TID has no obligation to Blom to return the guaranteed amount. It's pretty simple really, even as a question of fact, Sharia is a system of law that is being applied in an English court so there is no practical difference.

English contract law (of which Australian contract law is based of course) is made up of a number of principles and rules, power to contract is one of these. There is no reason that this case could not be used as precedent by a party trying to avoid a contract on the basis of any other contract law rule or defence:

Ultra vires my personal capacity - as a Muslim I have no power to sign a non-Sharia compliant contract therefore you have no right to enforce it against me.

Mistake - it was an obvious mistake of me to sign the contract in its current form so it must be amended by the court to make it Sharia compliant (in my favour!)

Misrepresentation - you lied that I wasn't going to hell if I signed this contract!

Implied terms - as a Muslim party to the contract there is always an implied term that I can weasle out of it as required on the basis of non-Sharia compliance.

Undue influence - my imam told me to sign it and as a Muslim you know I have no right to think for myself and must do what the imam tells me.

Unconscionable - it is unconscionable for you to enforce this non-Sharia compliant contract! If it is enforced against me I will spend eternity in hellfire with the filthy infidels and women.

Illegal purpose - a non-Sharia compliant contract breaches the Racial Discrimination Act so can't be enforced against a Muslim!

Financial Times commentary
In a breathtaking display of stupidity and dhimmitude, Andrew Cunningham when commenting on the case in the Financial Times on 21 April wrote (amongst other ridiculous ideas) that "Sharia boards need to move beyond compliance and take a leading role in the boardroom" and suggested that Sharia boards be more "forward looking and strategic".

So the FT wants Sharia scholars in the boardrooms of Islamic Banks, including by implication Western ones who sell Islamic products, making strategic decisions. Looks like a good percentage of all future loans will be allocated for the strategic purpose of killing us infidels.

A silver lining?
At first glance this appears to have some benefits for the future of the free world. We have exposed Sharia finance for a sham, that deep down the Banks really need the certainty and rationality of English law imposed on their risk averse contracts. They really don't want Sharia law imposed on the contracts just yet, just the illusion of it. Will western Banks turn away from lending Islamically because of this decision?

When it comes to Islam, silver linings have a tendency to quickly turn olive green. Based on the FT comments and the 'never say die' attitude of the Islamists (unless there's virgins to be had), Sharia finance will find a way to thrive. It will do so by insisting on Sharia advisers in the boardrooms and other influential positions of dhimmitude-willing western Banks. I see these Sharia advisers demanding that special loss provisions be made for Sharia finance and that additional risk be accepted as a strategic investment and under threat of being labeled racist. But for Muslim borrowers only of course, they will convince the board that a non-Muslim will not have an argument in court based on non-Sharia compliance. A good result for Islam all round.

What it means for Australia
There is little doubt that when Australia gets poisoned by Sharia finance the Australian courts will look to the English courts for persuasive guidance. The English courts have dealt with these issues before and this is usual judicial practice. Whilst application of Sharia will start off in Sharia finance contracts there is no reason why it can't spread to any other form of contract. We can only hope that our judges haven't taken their "how to love Islam" classes like every other public official by the time the first case comes to trial.

I know I said previously that Sharia finance contracts will be governed by Australian law and not Sharia law. Sadly though I feel this statement has already become redundant and what law will govern Australian contracts in the future only the Flying Spaghetti Monster knows. Sure there's a bit of crystal ball gazing in this article but unfortunately, when it comes to Isalm, the future is not hard to predict.

What we do know for sure is that it took 200 years for Australia to establish full judicial independence from Britain. This is a celebrated milestone but one wonders what it will be worth in a few years when we're both subservient to Sharia law anyway. Unfortunately that control will never be removed by a simple Act of Parliament nor within 200 years - even if the Act is another aptly named Australia Act.

Last Updated on Thursday, 06 May 2010 21:29  

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