Let me be clear, neither the Victorian Government or the Islamic Council of Victorian will be pursuing the establishment of a sharia tribunal.

Despite this, the recent call for the establishment of a sharia tribunal in Victoria (The Age, 19/10) reflects the increasingly common advocacy by Muslims for sharia tribunals across Western societies to settle disputes within the Muslim community, in particular as they relate to Muslim personal legal code issues such as marriage, divorce, child custody, and financial settlement upon dissolution of marriage.

The increasing urgency by which such calls are being made reflect a complex set of issues: growing uncertainty among some Muslims about how to maintain their identity in a highly globalised, diverse Muslim world; uncertainty about what constitutes appropriate recognition of Muslim rights as a minority community in Western societies; and concerns about what it means to be a person of faith in a modern liberal nation such as Australia.

More than anything, however, the call for sharia tribunals represents two fundamental questions for Muslims everywhere: what is it to be Muslim in the 21st century beyond replicating the traditions of our ancestors? And: how to be Muslim in a way that recognises Muslim women's exclusion and marginalisation from the interpretation of Islam for the past 1000 years?

There are many issues at stake but let me begin by addressing the issues as they relate to women, as they, beyond anyone else, risk having their rights and status compromised. Many Muslims have come to conflate reducing the status of women with what it means to be authentically Muslim. The reason for this conflation is that many Muslim-majority countries have dropped sharia from the legal system except in matters related to what is known as the Muslim personal code on marriage, divorce, and child custody, what is loosely defined as sexual morality. Many Muslims believe that current laws as they apply to these matters reflect sharia as the Prophet might have envisaged it but in fact significant reform has been undertaken, almost always against the interests and well being of women and children and against the egalitarian spirit of Islam.

It is difficult to make generalisations across the Islamic world and the various schools of Islamic thought that have existed historically. A literal application of sharia would see women loose their right to divorce except in a few and extreme set of circumstances. A non-fault divorce would only be available to women who forfeited their maintenance and any other financial gain made as a result of the marriage. Women would no longer be entitled to maintenance upon divorce as the Muslim system favours a one-off payment. There is also an automatic loss of custody of children above the age of seven for boys and nine for girls — unless the husband has no interest in acquiring custody. There are exceptions where a more humane and egalitarian interpretation of Islam exists but today an intensely orthodox interpretation of Islam dominates the interpretation and implementation of sharia, which is deeply antagonistic to women. The problem is not Islam but the way that it has been interpreted by an elite, deeply conservative group of Muslims.

It is inappropriate to argue that women can simply choose to not use such a tribunal because it denies both the limited power and vulnerability of women as a group. Many women simply cannot withstand community pressure against using "outside" assistance — nor should they have to. To expect women to seek outside assistance against community pressure leaves them vulnerable to being ostracised and treated as unIslamic.Numerous examples from Britain demonstrate that women felt they had no option but to use the tribunal because of community pressure and expectation. In addition, over time many Muslim community members no longer recognised the British courts as having a legitimate role in resolving what they believed to be internal community disputes — in effect Muslims and the British Government seem to be in agreement that Muslims are no longer citizens subject to the rules and institutions of the state.

Which brings me to my next point — the issues as they relate to Muslims and Islam. Firstly, let me be clear, this is not a debate about sharia because, in fact, 70 per cent of what most Muslims believe to be sharia is in fact fiqh (put simply fiqh is the interpretive work of Islamic scholars). This important because while sharia is considered divine by a significant number of Muslims, fiqh is the opinions of scholars who lived centuries ago. The difference between fiqh and sharia raises practical considerations. Importantly if you remove fiqh there is simply not enough sharia to constituent a tribunal to address the variety of disputes that we would see in today's context.

There are also deeply concerning questions as to what version of sharia will be implemented in this tribunal. An orthodox version would violate basic human rights as many Muslims understand them today and a liberal version will be condemned by imams and more conservative community elements as inconsistent with Islam.

A parallel system for Muslims is inconsistent with Islamic teaching. Strictly speaking there are no grounds for Muslims to have a separate system. Islamic doctrine dictates that Muslims must abide by and be part of the political and legal system of their state. It is difficult to understand how such an argument can be made Islamically beyond the historical examples of Muslims allowing these rights to minority Jewish and Christian communities. However, using this historical example raises difficult questions for Muslims. It is true that Christian and Jewish minorities received a great deal of cultural and religious autonomy, but these groups had no right to political participation or influence in the state unless they converted to Islam. Is this what some Muslims are asking for? If so, such a request would mean we may need to give up our political rights, for example such as the right to vote and the right to lobby.

Islam in my opinion does not have a history of mediation as has been suggested. It has a fairly long history of arbitration. This sets up the sharia tribunal in direct competition with our Australian system of courts and tribunals. This means for example that there may be disputes between say VCAT and the sharia tribunal or the family court and the sharia tribunal. What will it do to Muslim perception of the sharia tribunal if it is constantly overruled by other courts in our system? It is likely to breed resentment and distrust of the courts system generally and the Australian government.

As Muslims, it is entirely bewildering that our concept, our cultural or religious recognition is now measured by the extent to which the government is prepared to set us apart from the rest of Australian society. The legal ghettoisation of Muslims does not recognise their difference; it would simply allow a government to delegate its responsibility for ensuring the rights and protection of people who are different. Essentially, it would be a government prepared to outsource and privatise justice and the protection of women. Establishing parallel systems for Muslims does not ensure a culturally appropriate response to justice; it fundamentally locks out Muslims from organisations and services that they as citizens have a right to access.

Our notion of justice in this country should mean that Muslims should have the reasonable expectation of receiving appropriate treatment by any court of law. The purview of Australian courts is not white, middle-class Australia.

And finally, I'm referring to this because I think it refers to the integrity of Muslim activism on issues of rights. Hyder Gulam [of the Islamic Council of Victoria] and many others often compare the rights of Muslim Australians to indigenous Australians. It is my view that this is profoundly unethical. We are part of the colonial process that has dispossessed indigenous Australians. Their rights and entitlements should sit beyond anything that Muslim Australians have the right to appropriately expect. In no other country have the rights of indigenous communities and migrant communities been treated as equivalent.

Muslims Australians have a right to find a place for themselves in this country that recognises who they are as a people but this should not be at the expense of women and justice.

Joumanah El Matrah is director of the Islamic Women's Welfare Council of Victoria.