Who’s Oppressing Muslim Women? On The State Persecution Of Moutia Elzahed


Media and politicians have made a lot of noise lately about the oppression of women. But not all women, writes Michael Brull.

Moutia Elzahed, a Muslim woman who wears a niqab, was recently convicted of 9 counts of disrespecting court. Specifically, in 2016, the state government passed legislation imposing an $1,100 fine, or 14 days in jail, as maximum punishments for those who disrespect courts. This legislation was more or less in response to media hysteria at Muslims who purportedly disrespected the courts by not standing for the judges. As Gabrielle Upton noted, it was about “widespread community concern” at the supposed lack of respect shown to courts.

Elzahed’s case relates to events in 2014. Elzahed’s husband was convicted of recruiting people for ISIS. As one might imagine, this hasn’t endeared her to media, which never tires of complaining about Muslims, and highlighting links between Muslims and terrorism. Thus, in counter-terror raids in 2014, police raided her home. Elzahed alleges that police assaulted her, and abused her and her family. She alleges that police punched her in the ear, eye and head. She alleges that she was handcuffed in an aggressive manner, called a bitch, and two of her sons were called terrorists by the police.

Elzahed sued the police for this abuse. However, her allegations essentially remained unheard, as the court refused to listen to her. District Court Justice Audrey Balla was offended at the notion of evaluating Elzahed’s evidence whilst Elzahed wore a niqab. Originally, Clive Evatt, Elzahed’s barrister, explained that she would only briefly show her face, and only to women. The NSW Police lawyer said “We’re content with that”. District Court Justice Balla was not, saying “It’s not something I have to live” with, and asked the lawyers “Do either of you have something to say about that?” Having telegraphed her opinion in advance of hearing submissions on the subject, Balla DCJ duly refused to hear from Elzahed whilst she wore a niqab.

After weighing up the allegations without hearing from Elzahed, but hearing the police account, Balla DCJ ruled that there was no evidence the police had assaulted Elzahed, and dismissed her accusations in December 2016. In June last year, Balla DCJ ruled that Elzahed and the tutor for two of her sons had to pay legal costs to the Federal and NSW State government. This amounted to about $250 000.

The judge was undeterred by her finding that “the defendants have shown that it is unlikely that the plaintiffs will pay any costs Order made against them.” That is, Elzahed is married to a man in prison for supporting ISIS. She has two children, and they live in a Housing Commission. The tutor for the two children, appointed in 2015, has no property. Elzahed was ordered to pay an enormous sum the governments admit she can’t afford, for the crime of trying to hold police accountable for the violence she alleges they committed against her in her home.

Now, she faces nine counts of not standing in court. That can amount to 117 days in jail, or $9,900. It is hard to imagine she could pay that fine. If she is sent to prison, her children will be left with no parents outside jail.

This outline should be stark enough. A woman accuses the police of assaulting and abusing her and her children. In response, the court refuses to listen to her because of her religious dress, and imposes an enormous legal fine which she is expected to be unable to pay. She now faces imprisonment for not standing in court. This should be a scandal.

You can get a sense of how things actually are by various media figures harassing Elzahed and another Muslim woman as they leave court. The woman accompanying Elzahed quite reasonably tells them to “go find a sewer”. Another reporter says “Go find a sewer? Do you think that’s a nice way to speak to people?” The woman replies, “This is Australia, mate, I can say whatever I bloody well like.” The reporter replies, “Well you can’t say go find a sewer, she broke the law…” The Muslim woman replies “Go chase a paedophile!”

This exchange, aside from the gratifying abuse of the ‘journalists’ present, is Australian chauvinism in a nutshell. We are endlessly subjected to media tirades about how awful Islam is, how Muslim women are oppressed, they need to be liberated from the hijab and the burqa and so on. Here, a Muslim woman alleges that she was subjected to violence from police, and silence across the political spectrum is almost complete. Uthman Badar from Hizb ut Tahrir criticised the conviction of Elzahed. Otherwise, the media has ranged from abuse and ridicule, to silence.

The media routinely gets worked up about how Muslims don’t believe in freedom of speech like “we” in the West do. Westerners mock and ridicule the most sacred beliefs and customs of Muslims, out of an enlightened commitment to freedom of speech. But when Muslims challenge Australian and Western customs and traditions, it turns out there are some pretty delicate and fragile Australians, who quickly fall to pieces at the slightest display of disrespect.

Remember the endless outcry and hysteria over Yassmin Abdel Magied for her inoffensive post about remembering other things on ANZAC Day? It turns out there are a lot of media figures with glass jaws, who love to dish out ridicule and contempt, but then have emotional meltdowns at the slightest sign of disrespect.

Why can’t a Muslim woman express contempt for media figures harassing her friend? Because it’s rude. Presumably, those media figures went on to present harsh stories about how awful Elzahed is for the newly invented crime of not standing in court.

Most of us survive the terrible trauma of people sitting down when we enter a room, but apparently this is too much for judges to endure. To survive that kind of appalling disrespect, they apparently need to impose prison sentences or fines.

The argument may be that courts are an established institution in Australia, and should be treated with respect. This argument could be made with a straight face if those same arguments didn’t endlessly clamour for the right to insult, ridicule and hurl contempt towards Muslims and Islamic beliefs and practices. What is held up as high-minded ideal is really little more than Western chauvinism.

It is worth making one more point, which I’ve made before. In the 1930s, the Jehovah’s Witnesses were one of the most stigmatised religious groups on the planet. They’d descend on a community, and aggressively denounce other religions, in the most hateful terms. Other religious groups were “racketeers”, the Catholic Church was an old “harlot”, and more. This made them wildly unpopular. They also refused to salute the flag, whether in Germany or in the US. In Germany, thousands were sent to concentration camps. In the US, two children were expelled from school for refusing to stand and salute the flag.

A legal battle ensued, and went all the way to the US Supreme Court. Justice Frankfurter wrote the lead opinion in 1940, explaining that “We live by symbols”, the flag “is the symbol of our national unity”, and “National unity is the basis of national security.” What followed was a wave of hundreds of attacks on Jehovah’s witnesses. The US Justice Department observed, “In the two years following the decision, the files of the Department of Justice reflect an uninterrupted record of violence and persecution of the Witnesses. Almost without exception, the flag and the flag salute can be found as the percussion cap that sets off these acts.”

That judgment was viewed as a grave mistake. By 1942, three judges from the Supreme Court admitted they were wrong. This formed a majority in 1943. Justice Robert Jackson, who went on to try Nazi war criminals at Nuremberg, eloquently upheld the rights of religious dissenters to challenge national symbols. He explained that “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

He memorably explained that “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The USA is not exactly a touchstone of religious tolerance. Even so, whilst Colin Kaepernick has suffered in various ways for kneeling during the national anthem, there has been no question that he would be thrown into jail for it. The persecution of Jehovah’s Witnesses by the justice system is regarded as a black mark against the courts. The principles laid down by the US Supreme Court defending the right of minorities to dissent against symbols of the state were established over 70 years ago. These kinds of principles should be fundamental to any society that even pretends to be liberal. But there is no outrage, no sympathy, no solidarity for Moutia Elzahed. She couldn’t get a hearing in court because of her niqab, and that was apparently fine.

Elzahed didn’t want to stand for the judge – a judge who refused to hear her allegation of violence against the police – and so laws were passed so that she could be fined or thrown into jail for her disrespect of the court. And apparently, all this is fine.

The only controversy is over how awful Elzahed is, and not whether the courts and media have behaved disgracefully.

Michael Brull writes twice a week for New Matilda. He has written for a range of other publications, including Overland, Crikey, ABC's Drum, the Guardian and elsewhere. His writings can be followed at his public Facebook page (click on the icon below right).