Wednesday, August 25, 2010

A Discussion About Sharia Law

We have been hearing more and more about the introduction of Sharia Law into Western countries. In fact, it is already being enforced to some degree in places like Britain. Most of us common Americans have not got a clue about just what Sharia Law is –so I thought it might be good to give everyone a little “crash course.” After all, I believe the time is approaching when we will be asked to consider allowing the enforcement of Sharia Law. Also, since a percent of the U.S. population is Muslim, we should take the time to gain a better understanding of these things.

Sharia Law (or Islamic law) forms a basis for the legal codes in most Muslim countries today. There is a movement to allow Sharia to govern personal status law (a set of regulations that pertain to marriage, divorce, inheritance, and custody) to be used in Western countries with Muslim populations.. There are so many varying interpretations of what Sharia actually means that in some places it can be incorporated into political systems relatively easily. Sharia's influence on both personal status law and criminal law is highly controversial, though. Some interpretations are used to justify cruel punishments such as amputation and stoning as well as unequal treatment of women in inheritance, dress, and independence. The debate is growing as to whether Sharia can coexist with secularism, democracy, or even modernity.

O.K., fine. So just what is Sharia?

Also meaning "path" in Arabic, Sharia guides all aspects of Muslim life including daily routines, familial and religious obligations, and financial dealings. It is derived primarily from the Quran and the Sunna (the sayings, practices, and teachings of the Prophet Mohammed). Precedents and analogy applied by various contemporary and historical Muslim scholars are used to address new issues as they appear.

Sharia developed several hundred years after the Prophet Mohammed's death in 632 AD as the Islamic empire expanded to the edge of North Africa in the West and to China in the East. Since the Prophet Mohammed was considered the most pious of all believers, his life and ways became a model for all other Muslims and were collected by scholars into what is known as the hadith. As each locality tried to reconcile local customs and Islam, hadith literature grew and developed into distinct schools of Islamic thought: the Sunni schools, Hanbali, Maliki, Shafi'i, Hanafi; and the Shiite school, Ja'fari. Named after the scholars that inspired them, they differ in the weight each applies to the sources from which sharia is derived, the Quran, hadith, Islamic scholars, and consensus of the community. The Hanbali school, known for following the most Orthodox form of Islam, is embraced in Saudi Arabia and by the Taliban. The Hanafi school, known for being the most liberal and the most focused on reason and analogy, is dominant among Sunnis in Central Asia, Egypt, Pakistan, India, China, Turkey, the Balkans, and the Caucasus. The Maliki school is dominant in North Africa and the Shafi'i school in Indonesia, Malaysia, Brunei Darussalam, and Yemen. Shia Muslims follow the Ja'fari school, most notably in Shia-dominant Iran. The distinctions have more impact on the legal systems in each country, however, than on individual Muslims, as many do not adhere to one school in their personal lives.

Punishment under Sharia

Marriage and divorce are the most significant aspects of Sharia, but criminal law is the most controversial. In Sharia, there are categories of offenses: those that are prescribed a specific punishment in the Quran, known as hadd punishments, those that fall under a judge's discretion, and those resolved through a tit-for-tat measure (ie., blood money paid to the family of a murder victim). There are five hadd crimes: unlawful sexual intercourse (sex outside of marriage and adultery), false accusation of unlawful sexual intercourse, wine drinking (sometimes extended to include all alcohol drinking), theft, and highway robbery. Punishments for hadd offenses include flogging, stoning, amputation, exile, or execution and get a significant amount of media attention when they occur. These sentences are not often prescribed, however. Most Muslim countries do not use traditional classical Islamic punishments. These punishments remain on the books in some countries but lesser penalties are often considered sufficient. A notable exception is, of course, the Taliban in Afghanistan where they have been making a determined effort to return to pure Sharia Law.

Despite official reluctance to use hadd punishments, vigilante justice still takes place. Honor killings, murders committed in retaliation for bringing dishonor on one's family, are a worldwide problem (including a number of cases recorded recently here in the United States). While precise statistics are scarce, the UN estimates thousands of women are killed annually in the name of family honor. Other practices that are woven into the Sharia debate, such as female genital mutilation, adolescent marriages, polygamy, and gender-biased inheritance rules, elicit as much controversy. There is significant debate over what the Quran sanctions and what practices were pulled from local customs and predate Islam. Those that seek to eliminate or at least modify these controversial practices cite the religious tenet of tajdid. The concept is one of renewal, where Islamic society must be reformed constantly to keep it in its purest form. "With the passage of time and changing circumstances since traditional classical jurisprudence was founded, people's problems have changed and conversely, there must be new thought to address these changes and events," says Dr. Abdul Fatah Idris, head of the comparative jurisprudence department at Al-Azhar University in Cairo. Though many scholars share this line of thought, there are those who consider the purest form of Islam to be the one practiced in the seventh century.

In a 2007 University of Maryland poll, more than 60 percent of the populations in Egypt, Morocco, Pakistan, and Indonesia responded that democracy was a good way to govern their respective countries, while at the same time, an average of 71 percent agreed with requiring "strict application of [Sharia] law in every Islamic country." Whether democracy and Islam can coexist is a topic of heated debate. Some Islamists argue democracy is a purely Western concept imposed on Muslim countries. Others feel Islam necessitates a democratic system and that democracy has a basis in the Quran since "mutual consultation" among the people is commended (42:38 Quran).

Dual Legal Systems. Many majority Muslim countries have a dual system in which the government is secular but Muslims can choose to bring familial and financial disputes to Sharia courts. The exact jurisdiction of these courts varies from country to country, but usually includes marriage, divorce, inheritance, and guardianship. Examples can be seen in Nigeria and Kenya, which have Sharia courts that rule on family law for Muslims. A variation exists in Tanzania, where civil courts apply Sharia or secular law according to the religious backgrounds of the defendants. Several countries, including Lebanon and Indonesia, have mixed jurisdiction courts based on residual colonial legal systems and supplemented with Sharia. Only Qatar has an official dual legal system where Adlia courts, or civil courts, are independent of the Sharia system and legislate secular laws. Western countries are also exploring the idea of allowing Muslims to apply Islamic law in familial and financial disputes. In late 2008, Britain officially allowed Sharia tribunals governing marriage, divorce, and inheritance to make legally binding decisions if both parties agreed. The new system is in line with separate mediation allowed for Anglican and Jewish communities in England. Criminal law remains under the gavel of the existing legal system. "There is no reason why principles of Sharia law, or any other religious code, should not be the basis for mediation," Britain's top judge, Lord Nicholas Phillips, said in a July 2008. Supporters of this initiative, such as the archbishop of Canterbury, Rowan Williams, argue that it would help maintain social cohesion in European societies increasingly divided by religion. However, some research suggests the process to be discriminatory toward women. Other analysts suggest the system has led to grey areas. Britain's Muslims come from all over the world, Ishtiaq Ahmed, a spokesperson for the Council for Mosques in England, told the BBC, noting that this makes it hard to discern at times "where the rulings of the Sharia finish and long-held cultural practices start."

Government under God. In those Muslim countries where Islam is the official religion listed in the constitution, Sharia is declared to be a source, or “the source”, of the laws. Examples include Saudi Arabia, Kuwait, Bahrain, Yemen, and the United Arab Emirates, where the governments derive their legitimacy from Islam. In Pakistan, Egypt, Iran, and Iraq, among others, it is also forbidden to enact legislation that is antithetical to Islam. Saudi Arabia employs one of the strictest interpretations of Sharia. Women are not allowed to drive, are under the guardianship of male relatives at all times, and must be completely covered in public. Elsewhere, governments are much more lenient, as in the United Arab Emirates, where alcohol is tolerated. Non-Muslims are not expected to obey sharia and in most countries, they are the jurisdiction of special committees and adjunct courts under the control of the government.

Completely Secular. Muslim countries where the government is declared to be secular in the constitution include Azerbaijan, Tajikistan, Chad, Somalia, and Senegal. Islamist parties run for office occasionally in these countries and Sharia often influences local customs. Popular Islamist groups are often viewed as a threat by existing governments. As in Azerbaijan in the 1990s, secularism is sometimes upheld by severe government crackdowns on Islamist groups and political parties. Similar clashes have occurred in Turkey. Under the suspicion that the majority party, the Islamist Justice and Development Party, was trying to establish Sharia, Turkey's chief prosecutor petitioned the constitutional court in March 2008 to bar the party from politics altogether. One of the politicians indicted, Prime Minister Recep Tayyip Erdogan, told Newsweek, "Turkey has achieved what people said could never be achieved--a balance between Islam, democracy, secularism and modernity." Secular Muslim countries are a minority, however, and the popularity of Islamist political parties are narrowing the gap between religion and state.

Lest you think that this will not become a problem in the United States, think again. Shariah is already starting to appear in our courts, especially in the area of family law:
  • You probably didn't know that there is something called the "Texas Islamic Court." It decides cases according to Shariah and its rulings sometimes end up in actual state court:
  • The Islamic Society of North America (ISNA), which was identified as a Muslim Brotherhood organization and named an unindicted co-conspirator in the largest terrorism financing conviction in US history (United States versus Holy Land Foundation), runs arbitrations here in the US according to Shariah:
  • There have been dozens of instances in which Shariah has been invoked in US courts, mostly unsuccessfully, but not always. Here are two of the most infamous cases, according to Stephen Gele of Lawyers Against Shariah:
  • In S.D. v. M.J.R. in the state of New Jersey, a New Jersey judge saw no evidence that a Muslim committed sexual assault of his wife - not because he didn't do it, but because he was acting on his Islamic beliefs: "This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited." Fortunately, an appellate court overturned this atrocious decision, and a Shariah ruling by a U.S. court was not allowed to stand.
  • In a Maryland case, Hosain v. Malik, 108 Md.App. 284, 671 A.2d 988 (Md.1996), a Maryland Court granted comity and enforced a Pakistani custody order turning a child brought to the US by the mother over to the father. The Maryland Court held that: the burden was on the mother to prove the Pakistani court did not apply law in "substantial conformity with Maryland law" by a preponderance of the evidence; the case was "not about whether Pakistani religion, culture, or legal system is personally offensive to us or whether we share all of the same values, mores and customs, but rather whether the Pakistani courts applied a rule of law, evidence,or procedure so contradictory to Maryland public policy as to undermine the confidence in the trial"; the best interest of the child should not be "determined based on Maryland law, i.e., American cultures and mores," but rather "by applying relevant Pakistani customs, culture and mores";"a Pakistani court could only determine the best interest of a Pakistani child by an analysis utilizing the customs, culture, religion, and mores of ... Pakistan"; "in the Pakistani culture, the well being of the child and the child's proper development is thought to be facilitated by adherence to Islamic teachings"; the Pakistani order was not the result of "a trial by fire, trial by ordeal, or a system rooted in superstition, or witchcraft"; the "longstanding doctrine [of Hazanit1] of one of the world's oldest and largest religions practiced by hundreds of millions of people around the world and in this country, as applied as one factor in the best interest of the child test, is [not] repugnant to Maryland public policy"; and, the granting of the order by the Pakistani Court without representation for the mother was not repugnant to Maryland public policy because although she may have been arrested for adultery if she returned to Pakistan for the custody proceedings and have been subject to "public whipping or death by stoning," such punishments were "extremely unlikely."

Louisiana residents may be interested in knowing that similar cases have arisen in the Bayou State, including a child custody case with fortunately a very different outcome from that in Maryland (again, thanks to Stephen Gele):
In Amin v. Bakhaty, 01-1967 (La.10/16/01), 798 So.2d 75, the Louisiana Supreme Court refused to enforce an Egyptian custody order stating that: The only other forum that could possibly determine custody would be Egypt. However, the Egyptian Court is not compelled to consider the minor child's best interest. [The father] would have the absolute right to guardianship, as well as the right to physical custody. This Court believes that a parent's interest in a relationship with his or her child is a basic human right. Egypt follows Islamic family law, which structures some of the rights between family members based solely on gender. Under the Egyptian concept of "guardianship," the father has the absolute right to the guardianship and the physical custody of the minor child. [The father]‘s affidavit when he petitioned for a civil warrant confirmed this structure in Islamic law, stating that by operation of Egyptian law, both the temporary guardianship and physical custody of [the child] rested exclusively with him. The unique circumstances of this case required more consideration for the best interest of this child than for the extension of comity toward the Egyptian/Islamic legal system.

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