Jihadi activity in France a reminder of Supreme Crt Judge Fagan's advice to Muslims in R v Bayda ; R v Namoa (No 8)

 by Ganesh Sahathevan 

                                                            ASIO extends its deep condolences to the people of France. 4:37 PM · Oct 30, 2020

The jihadi activity in France over the past weeks which has included two beheadings has concerned ASIO to the point where ASIO has tweeted solidarity with the people of France (see tweet above from the ASIO Twitter account). 

The beheadings remind us of the words of Supreme Court Judge Mr Justice Fagan in R v Bayda ; R v Namoa (No 8)

78. Terrorists’ reliance on verses of the Quran to support an Islamic duty of religious violence has been seen with more or less clarity in a number of NSW and Victorian cases: see R v Khaja (No 5) [2018] NSWSC 238 at [72]- [78], [98], [101], [122]. The many Australian Muslims who wish to live in peace with the whole community may reflect that if Islam accepts the entire Quran as Allah’s eternal instruction to believers, without explicit repudiation of verses which ordain intolerance, violence and domination, that unqualified acceptance will embolden terrorists to think they are in common cause with all believers and indeed that they are the spearhead of the religion. The scriptural support for the terrorists’ perceived obligation of jihad cannot be rebutted by Australian courts or law enforcement authorities. If the verses upon which the terrorists rely are not binding commands of Allah, it is Muslims who would have to say so. If Australian followers of the religion, including those who profess deep knowledge, were to make a clear public disavowal of these verses, as not authoritative instructions from Allah, then the terrorists’ moral conviction might be weakened.
    
79. The incitements to violence which terrorists quote from the Quran cannot just be ignored by the many believers who desire harmonious coexistence. Those verses are not ignored by terrorists. As seen in this and numerous other prosecutions, the hostile verses are inspiring serious crimes. In turn those crimes have the capacity to provoke social division and mistrus

-per Fagan J in   R v Bayda ; R v Namoa (No 8)   [2019] NSWSC 24

As noted by this writer Fagan J's words remain a good description of The Quran's role in encouraging  passive support for jihadi activities:

The Quran and passive support for jihadism explained by Fagan J in R v Bayda ; R v Namoa (No 8)

Also as reported, Fagan was unfortunately attacked by his own for having expressed the obvious. 

TO BE READ WITH 

Muslim Legal Network accused Sup Crt Judge Fagan of lacking fairness, failing to perform his role of administering justice impartially: Soon after his Chief Justice Tom Bathurst praised MLN for upholding the rule of law :" doing a good job, cannot see how you can do it better"

by Ganesh Sahathevan

The video excerpt above has been extracted  from the Muslim Legal Network's Facebook page. While the 2019 Iftar Dinner was held in May, the video at this link was only uploaded in November:

Muslim Legal Network New South Wales

MLN (NSW) Iftar 2019 Highlights

If you missed out on attending our Ramadan Iftar Dinner earlier this year, dont miss out on this highlights ree


Chief Justice Tom Bathurst's words of praise for the MLN are intriguing given this attack on his bother Supreme Court judge, Desmond Fagan: 
“We and various other organisations have made it clear that the comments by his Honour *Judge Desmond Fagan)  were disappointing to say the least,” said Muslim Legal Network NSW president Sarah Khan. “The role of the judiciary is one of impartiality and fairness, and justice should be seen to be done.”

The position of the network that represents Australian Muslim legal practitioners is that Justice Fagan failed to perform his role of administering justice impartially, and rather, conflated crime and religion. And it warned this could lead to further Islamophobic attacks.
The context of the above statements is explained (in part) in the article below, bot that is not really relevant. In most jurisdictions that type of comment from lawyers would be considered a subversion of the judicial system.Lawyers can expect penalties to be imposed, by the courts and their respective professional bodies.
Not it seems in the eyes of Chief Justice Thomas Francis Bathurst, who has recently given a speech in which he expressed some difficulty in discerning community standards.
END 

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Supreme Court Justice Criticised for Divisive Remarks About Islam

15/02/2019 BY PAUL GREGOIRE

Remarks made by NSW Supreme Court Justice Desmond Fagan in relation to the interpretation of “hostile passages” in the Quran have caused outrage amongst the local Muslim community, as well as sparked calls from the NSW legal profession for greater understanding of Islam.


Justice Fagan said on the 31 January that a number of NSW and Victorian cases reveal that terrorists rely on Quranic verses “to support an Islamic duty of religious violence”. And unless “Australian Muslims who wish to live in peace” denounce these particular verses, this will continue.

“If Islam accepts the entire Quran as Allah’s eternal instruction to believers, without explicit repudiation of verses which ordain intolerance, violence and domination,” Mr Fagan posited, “that unqualified acceptance will embolden terrorists”.

The Supreme Court justice further claimed that it was beyond the reach of the courts and law enforcement to prove “terrorists’ perceived obligation of jihad” is false, so it’s up to Australian Muslims to assert that the violence inciting passages are “not authoritative instructions from Allah”.

Muslim group have stated that the judge’s conjecture about the religion they adhere to is out of his remit. And while he was present in the court to sentence two offenders convicted on terror-related charges, he wasn’t supposed to be casting doubt upon an entire religion.
Dividing the community

“We and various other organisations have made it clear that the comments by his Honour were disappointing to say the least,” said Muslim Legal Network NSW president Sarah Khan. “The role of the judiciary is one of impartiality and fairness, and justice should be seen to be done.”

Thepositionof the network that represents Australian Muslim legal practitioners is that Justice Fagan failed to perform his role of administering justice impartially, and rather, conflated crime and religion. And it warned this could lead to further Islamophobic attacks.

According to the Muslim Legal Network NSW, “Australian Muslim leaders, religious scholars, community workers, lawyers and advocates have repeatedly rejected teachings relied upon to incite violence”.

Ms Khan further toldSydney Criminal Lawyersthat her organisation “is working to find a solution to such narrative and is endeavouring to engage with relevant professional bodies in order to educate and discuss a way forward and better serve the Australian community”.
Conspiring to do acts

Justice Fagan made the remarks as he was sentencing Sameh Bayda and Alo-Bridget Namoa: the so-called “Islamic Bonnie and Clyde”. Last October, the pair were found guilty of conspiring to do acts in preparation for a terrorist act, contrary to section 101.6(1) of theCriminal Code(Cth).

The now 21-year-olds were charged with this offence – which carries a maximum penalty of life imprisonment – following the planning a violent street robbery of two non-Muslims that Bayda and two other men were going to carry outon New Year’s Eve 2015.

Mr Bayda backed out of the attack at the last minute. And the pair were subsequently arrested. Text messages that Ms Namoa had attempted to delete were retrieved from her phone. These revealed the recently married couple discussing how they wanted to carry out a jihadist attack.

It was heard by the court a fortnight ago that both Bayda and Namoa have given up their extremist views. Justice Fagan found their crimes were of the “low order of seriousness” and he handed down sentences, which meant the pair are now eligible for parole after spending years on remand.
Purported silence

During his sentencing remarks, Justice Fagan outlined that the countless extremist recorded sermons and articles Bayda and Namoa had on their phones quoted “verses of the Quran which unmistakably instruct the believers to undertake jihad in pursuit of universal Islamic dominance”.

The judicial officer went onto list various verses from the Quran to prove his point. And he then cited Dr Rodger Shanahan who’d explained that Islam is not only limited to religion, but it’s also a legal and political system.

Justice Fagan further explained that jihadist propagandists “consistently invoke belligerent verses of the Quran” to justify their actions. And he said the pair should have known that “Allah’s instructions” to attack those of different religious persuasions wouldn’t stand up in the “civilised world”.

And the judge concluded that “the absence of express public disavowal of verses which convey Allah’s command for violence”, contradict the assurances from the Australian Muslim community in regard to Islam being “a religion of peace”.
Mending bridges

A week after Justice Fagan made his incendiary remarks, a number of distinguished members of the judiciary and the legal profession went to the Gallipoli Mosque in Auburn to attendan Islamic servicethat marked the opening of the 2019 law term.

Law Council of Australia president Arthur Moses SC said at the occasion that it’s important for “communication and understanding of the Islamic faith in Australia’s legal profession and judicial process”.

And whilst he said he wasn’t “passing comment on any recent case”, Mr Moses said “the criminal actions of a few” must not be “used to unfairly judge, discriminate against or condemn a whole community or religion”, as, “ultimately, we are one community”.
Exceeding a judge’s duty

The Law Council president also commended the appointment of NSW barrister Bilal Rauf as the new media spokesperson for the Australian National Imams Council (ANIC): an organisation representing Imams, clerics and Islamic scholars across Australia.

On the day following Justice Fagan’s comments, the ANIC condemned them ina statement. The umbrella organisation said it was disappointing that the judge thought it was “appropriate to give a broader commentary on Muslims”, whilst sentencing two offenders.

The ANIC stated it was clear that in regard to comments about the “‘unqualified acceptance’ of certain passages in the Quran by Muslims”, Justice Fagan had given no consideration to mainstream and orthodox Muslims, who “categorically reject extremist interpretations of the Quran”.

Of most concern is that the comments and opinions expressed by the judge appear to exceed his duty of passing judgement on the specific case at hand,” the ANIC statement concluded, “rather than judging an entire faith community and its religious text.”

E

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.