Thursday, May 19, 2011

The Intrusion of Sharia into American Justice, Part 2

Constitution Shahada

I wrote the other night about the release of a ground-breaking report by the Center for Security Policy on the application of sharia law in American jurisprudence (see “Shariah Law and American State Courts” and the paper itself, Shariah Law and American State Courts: An Assessment of State Appellate Court Cases [pdf]).

Because the document itself is more than 600 pages long, I’ll undertake a series of posts to highlight some of the more important parts of the report for our readers. Tonight’s excerpts are from the “Background” section that introduces the paper.

Most Americans would probably be surprised to discover how widespread the application of Islamic law is in this country. Yet none of this is a secret. American Muslims are not hiding their efforts to impose sharia — they are quite open about what they are doing. The Assembly of Muslim Jurists of America (AMJA) is up-front in its acknowledgement that the sharia it intends to implement is “another system of law outside the U.S. Constitutional framework.”

We often talk about “stealth jihad”, but there is no “stealth sharia” — what we see is “in-your-face-sharia”. All you have to do is turn off the MSM, take off the blinders, and look around you.

When you read these excerpts, you’ll notice that the AMJA instructs its members to place their allegiance to Islamic law above any allegiance to the United States and its Constitution.

You’ll see that Muslims who undertake jury duty are required not to render any judgment that violates sharia.

American Muslims are plainly instructed to co-operate with our political and legal institutions only to the extent that those institutions do not require them to violate Islamic law.

If we lived in a sane country, these writings and the organizations that sponsor them would be considered seditious. Those who wrote them would be held accountable. Any lawyers adhering to them would be disbarred and prosecuted.

But we live in a degraded times. Not only do such actions go unpunished, they are even celebrated, funded, and promoted by our own government.

*   *   *   *   *   *   *   *   *   *   *   *   *   *   *

Muslims would have us believe that this is all about family law: “This is just a family affair. Nothing to see here. Nothing to bother yourself about. Just a few private matters…” That’s their story, and they’re sticking to it.

But “family” is actually a proxy term for the rights of women and girls, and for the rights of the individual. Women and girls are denied their rights under sharia, and under Islamic law the individual does not have the same rights that are guaranteed by the U.S. Constitution.

So this isn’t really about families at all. The Muslim family is just the beginning: this is about undermining the legitimacy of the United States Constitution.

Bear all this in mind when you read the excerpts below, from pages 19 through 28 of Shariah Law and American State Courts: An Assessment of State Appellate Court Cases [pdf, footnotes omitted from these excerpts]:

In addition to the legal and academic literature on Shariah law in the U.S., a study of Islamic law in the U.S. was conducted by Emory Law School in 1999, which resulted in numerous country reports focusing particularly on issues of reform and personal status of women under the Shariah. This study, “No Altars: A Survey of Islamic Family Law in the United States,” includes a section on conflicts between Shariah and U.S. laws, including conflicts in the areas of polygamy, marriage to non-Muslims, forced marriages, and spousal abuse. The authors’ observations from twelve years ago apply even more today: “Some Muslims are proactively interested in ways to legitimately opt out of United States legal norms that potentially conflict with their Islamic preferences.” The purpose of the Emory Law School project on Islamic Family Law (IFL) is described at the website: “The first objective of this Project is to verify and document the scope and manner of the application of IFL [Islamic Family Law] around the world, including Muslim communities living within predominantly non-Muslim countries.”

Also of note, in a non-academic but still influential article published in 1993 originally in the print edition of The American Muslim by the American Muslim Council Deputy Director Issa Smith, “Native American Courts: Precedent for an Islamic arbitral system,” the author argued for a number of milestones that have since been achieved. These milestone include the creation of Muslim Bar Associations, and National Muslim Law Students Association, and the various organizations dedicated to the study of, promotion of, or enforcement of Shariah law in the U.S., which are listed in part later in this study:

Although the Muslim community in North America is vastly different from the Indian community, I feel that in developing a plan for the implementation of Muslim family law, we can in some ways imitate the paradigm of the tribal court system and its supporting network. In particular, I recommend that as a first step, supporting organizations dealing with Islamic family law be established immediately. A professional association of Muslims in the law field (of whatever specialty) is a must. A law school students’ support group should be formed, and Muslim youth should be encouraged to enter this field.

A second step would be to establish institutes in the U.S. which can supplement legal education with courses in Islamic family law. At the same time, pressure should be put on law schools to include courses in Shariah taught by Muslims. An idea suggested in several quarters and being developed by the American Muslim Council, is the moot court where students and legal experts can act out Muslim family court scenarios…

The process of implementing Muslim family law will not be accomplished overnight. Changes of their type take place very slowly in American society, and our community is far from being prepared for this tak [sic]. I commend the continental council of Masajid for organizing this conference, and bringing together so many workers and thinkers. I pray to Allah the real decisions are made here that can be implemented by those ready to work. However, I strongly urge that consideration be given to political realities and the sensitivities of the American public. Such a radical change in American law — allowing Muslims to take control over their family law issues — must be initiated from the indigenous Muslim community here in the United States. To have it seem that this initiative is originating from overseas or from organizations financed overseas, would create a very negative impression that would likely destroy this effort. [emphasis added]

United States-Based Muslim and Non-Muslim Institutions Supporting Shariah Law

United States universities and colleges are increasingly offering courses and specializations In Shariah law, including business schools, law schools and general courses. The academic study of all kinds of comparative law including Shariah is worthwhile; but in many cases, these courses may not provide full information on the conflicts between Shariah and Western legal traditions and values. In many cases, particularly for courses in Islamic Finance, they focus on the technical and operational aspects of the topic, without ever discussing the actual nature of authoritative Shariah law as understood and documented both here and abroad. This list does not include Muslim Bar Associations in many cities and states, the Muslim Lawyers Association, or the National Muslim Law Students Association. These groups are identified here to show the intent and extent of institutionalized study of Shariah law, as well as promotion and enforcement of Shariah law, in the U.S.

  • Shariah Scholars Association of North America (SSANA)
  • International Society for Islamic Legal Studies
  • Islamic Law Students Association
  • Islamic Law Section, The Association of American Law Schools
  • Karamah — Muslim Women Lawyers for Human Rights
  • Islamic Legal Studies Program, Harvard Law School
  • Cordoba University
  • North American Fiqh Council
  • North American Imams Federation
  • Assembly of Muslim Jurists of America

The Assembly of Muslim Jurists of America

The Assembly of Muslim Jurists of America (AMJA) is a U.S.-based organization committed to the establishment of Shariah law, especially for personal status and family law. Their extensive boards (123 members combined) include local Imams and Shariah authorities across America, as well as Shariah authorities from other countries. The entire AMJA membership, as listed at their website, is provided with titles when given as Appendix C.

AMJA is highly rooted in local American communities, and associated with international and U.S. Shariah authorities and Shariah institutions, as well as a prolific center at the website for fatwas on many topics. AMJA also holds conferences and publishes proceedings. They appear to be an active organization with significant reach and influence.

If such an organization promotes Shariah law in the United States, and they have representatives in influential positions across the country, their statements of intent are important in understanding the possible threat of Shariah law intruding into the U.S. legal system. For example, the Assembly of Muslim Jurists of America posted at their website an October 2010 article by M. Ali Sadiqi, “Islamic Dispute Resolution in the Shade of the American Court House.” This article’s conclusions on the conflict between public policy and Shariah suggest that a law such as the American Laws for American Courts Act (ALAC) is needed to preserve the intent of stated public policy in enforcement decisions. Sadiqi addresses the Constitutional barrier that Shariah-adherent Muslims must hurdle, in obtaining enforcement of at least some Islamic arbitration decisions in America:

Private citizens, Muslims and non-Muslims alike, can enforce agreements they have made between and amongst each other by filing a case in the appropriate court seeking various remedies. The challenge for Muslims seeking resolution under binding Islamic Arbitration is to demonstrate to the court that it has the legal authority to enforce the Arbitration Award, given the fact that it is based on another system of law outside the U.S. Constitutional framework. [emphasis added]

Sadiqi states that one of the purposes of his article is to “look at some concrete methods for ensuring enforceability of Islamic Arbitration Awards in American courts… What this means is that the state, including any court, has the duty to enforce any contract made between consenting parties, unless there is some compelling state interest in not doing so.” He goes on to give an example of when an Islamic arbitration could not be enforced by the state courts:

However, there is at least one roadblock facing Islamic Arbitration — determinations of inarbitrability based on public policy. For example, under Islamic inheritance law, the Fara’id, a wife is entitle [sic] to a specified share of one quarter of the tarik or estate if there are no children; if there are children, then she is entitled to one eighth. Under American law, most states protect the rights of a spouse to a portion of his or her spouse’s estate through “elective share” laws. Such laws allow a spouse to elect whether to take the share given them in a will or to take the statutorial share, usually 1/3 of the estate. Thus, it is quite possible that an arbitral award of 1/8 of the tarik could be overturned if the wife does not specifically agree to this amount and waive her statutory elective share.

Issues of child custody and visitation also invoke the public policy scrutiny of the courts. American courts use a “best interest of the child” standard” in custody and visitation determinations.” They will be unlikely to allow agreements to stand without some form of judicial review.

AMJA supports compliance with existing laws of the host country only when Muslims have no choice, a doctrinal Shariah position. However, in Muslim-majority countries — or where Shariah adherents can dominate secular legal systems — they advocate the supremacy of Shariah law over secular law. A number of statements below make clear these distinctions, drawn by AMJA authorities, between Shariah doctrine and secular, democratic principles. Emphasis has been added to the original articles:

AMJA: From “About Political Plurality in Islamic country” by Dr.Salah Al-Sawy

Ninth: As for the extent of legality of political plurality before establishing the Islamic State, we see it is permissible to have plurality that is capable of co-ordination, completeness, common work and co-operation with others to set up Islam, and at the same time, we see it is impermissible to have plurality that rejects co-operation, the closed plurality that is built upon ideologies and concepts, because they are a hindrance to the way of enabling for fixation…

Tenth: There is no problem in making alliances with moderate secular trends in the stage of pursuance of establishing the Islamic State, on condition that the subject of alliance is legal, and that it must not comprise any bindings that would harm the message of the religion, or that would tie the hands of the people who are involved in the Da`wa works and prevent them from spreading the truth and from marching towards the objective of establishing the Islamic State…

As for making alliances with the secular trends for eliminating the prevailing falsehoods, and then taking the matter afterwards to the test of the will of the majority, we see it is permissible to have what we mostly think it comprises the ability of power to establishing the Islamic State, or at least, reducing the degree of prevailing oppression and paving the convenient way for the Da`wa activities to prosper and flourish, and we prevent alliances in which we mostly think would not achieve any of these objectives for the Islamic State…

AMJA: A recent fatwa from AMJA on democracy

But democracy gives free reign to the authority of the Ummah, and puts no ceiling on it. The law is the expression of its will, and if the law says it, the conscience must be silent! A constitutionalist even said: “We have departed from the divine right to rule for kings, and replaced it with the divine right to rule for parliaments!” The shari’a, on the other hand, differentiates between the source of the legal system and the source of the political authority. The source of the legal system is the shari’a, while the source of the political authority is the Ummah. Meanwhile democracy makes the Ummah the source of both.

AMJA: Judiciary work outside the land of Islam

AMJA members discussed the permissibility of resorting to the judiciary system outside of the land of Islam. In this connection, AMJA asserts that in principle, it is incumbent upon all Muslims to resort to Islamic law for arbitration inside and outside the land of Islam. Indeed, resorting to Islamic law for arbitration whenever it is within one’s ability to do so is what distinguishes a believer from a hypocrite.

However, it is permissible to resort to a man-made judiciary system in a land that is not ruled by Islamic law if it becomes the only way for someone to retrieve one’s legitimate right or alleviate a grievance — provided one does not exceed what rightfully belongs to him under the Islamic law. Therefore, one should consult with the scholars first to know precisely what is due for him in that specific dispute under Islamic law.

Furthermore, since attorneys are representative of their clients, it is permissible to practice law within the scope of permissible, just, and legitimate cases that are filed to demand a right or alleviate a grievance. Similarly, it is permissible to study, teach, and understand man-made laws for the purpose of realizing the superiority of the Islamic laws, or practicing law in an environment that does not recognize the sovereignty of the Islamic law, intending to defend the oppressed people and retrieve their rights. This is, however, contingent upon the possession of enough Islamic knowledge, in order to avoid becoming an unwitting participant in sinful actions and transgressions.

AMJA members agreed that, in principle, it is prohibited for someone to assume a judiciary position under an authority that does not rule by Islamic law unless it becomes the only way to alleviate a great harm that is threatening the main body of Muslims. This is, again, conditional upon possessing knowledge about Islamic law, knowing rules and regulations of the Islamic judiciary system in Islam, and choosing a branch of practice as close in specialty as possible to the rules and regulations of Islamic law. In addition, one should judge between people according to Islamic law as much as one can. Furthermore, while in this position, one should maintain displeasure in his heart to the man-made laws. Needless to say, this ruling is an exception that is governed by the aforementioned provisions and restricted to necessity only.

AMJA further clarified that it is permissible for Muslims to serve as members in a jury proceeding, with the stipulation that their opinions be in compliance with Islamic law and with the intention to establish justice for all.

AMJA: On Marriage to gain permanent residency

d) The case of the nominal marriage for the purpose of getting permanent residency

The nominal marriage is the marriage contract in which the parties involved do not intend the reality of marriage and have no regard for its requirements and prerequisites. Rather, it is only used as a means to gain certain benefits. This type of contract is prohibited for lack of intention to consummate it, for the violation of the objectives for which marriage was legislated, and for the devising of prerequisites that are contrary to the objective of marriage.

However, the outward legality of this contract is dependent on how verifiable the nominal nature of this contract is before the court. If it is incontestable, then the contract is invalid, but if it is not, then the contract is considered valid, provided that all the prerequisites of marriage are fulfilled and no preventive reason existed.

AMJA: Working with the media:

E. It is not permissible to publish any information — even if it is true or permission has been granted — if doing so would result in harm as defined by Shari’ah.
F. Information must be broadcast via lawful means (in accordance with Shari’ah) and prohibited means must be avoided.
G. Any work with institutions known to be enemies of Islam must absolutely be avoided if such work would involve supporting their injustice and aggression.
H. Any work with institutions whose main focus is on anything prohibited in Shari’ah must be absolutely avoided, such as magazines or channels specialized in spreading sin and vice.

AMJA: Working in Courts of Law

VIII: Working in courts of law and the various affiliated branches outside the lands of Islam

A. Allah sent His Messengers and revealed His Books for people to stand forth with justice. The way to do this is to judge by His Laws, to stand up for pure justice and to renounce all the vain desires and human arrangements that go against it. Therefore, it is not lawful to seek judgment from man-made courts of law, unless there is a complete lack of Islamic alternatives which would have the power to restore people’s rights and eliminate injustice, and as long as one’s demands before the court are lawful and one does not make anything lawful unless it agrees with Shari’ah. If judgment is pronounced in a person’s favor, without due right, he/she must not take it, because a judge’s verdict does not make the prohibited lawful, nor the lawful prohibited; the judge’s role is merely to reveal, not to create.
B. It is incumbent upon Muslim communities to try to solve their disputes by compromising within the limits of Shari’ah judgment and by seeking out ways that are legal in their countries of residence which would enable them to judge by Islamic Law, especially in terms of personal status laws.
C. Working in the field of legal representation is lawful if the attorney is convinced of the justice and Islamic legitimacy of what he is being asked to represent.

AMJA: On conflicts between national allegiance, and allegiance to Shariah

Decisions Regarding Contemporary Aqeedah Challenges The Debated Relationship between Religious Loyalty and Nationalistic Affiliation

  • There is no harm in citizenship if it is taken as means of organizing the affairs of the residents outside the lands of Islam and establishing da’wah and founding their institutions. This is so long as its (the citizenship’s) possessor keeps his loyalty to his creed and nation (i.e. Islam and the Muslims), fulfills his covenant with Allaah and His messenger, and he and his family are secure of tribulation in their religion.
  • The legal framework that governs the relationship with the hosting nations outside of the lands of Islam is the contract of security. This is what is stipulated in the official residency documents. Of its implications is the abidance by the laws and local regulations as long as it doesn’t drive one to commit a sin or abandon an obligation. Fulfilling this contract is a necessity by sharee’ah and for the sake of da’wah. Upon conflict (of one’s legal vs. Islamic obligation), reservation (from participating in the Islamically impermissible) is to be made in the item that conflicts, and all else remains on the default of abidance.

We recommend, to understand AMJA’s doctrinal imperative to impose Shariah in the U.S., further reading of additional fatwa, conference proceedings and articles at the AMJA website, and also at the websites of the other organizations listed above.

We reaffirm our goal from this paper’s introduction: with the publication of this study and subsequent studies now in preparation, our objective is to encourage an informed, serious and civil public debate and engagement with the issue of Shariah law in the United States of America. This public debate is more urgent than ever before, as organizations such as the Muslim Brotherhood and their salafist coalition partners state openly their intent to impose the Shariah State and Shariah law as dominant across all Muslim majority countries.


Eleanor said...

My first is a visceral reaction: I want to throw up and then scream at and strike the blind useful idiots that are leading us down the path to annihilation and to the slavery into which all unfortunates find themselves when the find themselves under the boot of Shariah.

America, a nation of laws, will cease to exist once the law of Shariah becomes an acceptable on the same level as laws governed by the US Constitution as it is now written.