The Intrusion of Sharia into American Justice, Part 3

This is the third in a series of posts on the implementation of sharia in American jurisprudence, as described in a recent report from the Center for Security Policy (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]).


As a case study in the application of sharia in American courts, consider Joohi Q. Hosain (fka Malik) V. Anwar Malik, which was brought before a Maryland court of appeals in 1996. Since the judgment of the court applied only to a Pakistani national legally resident in the United States, and not an American citizen, the decision may not seem all that alarming to most Americans. However, a close look at the legal reasoning of the majority is instructive.

A summary of the case may be found on page 29 of the CSP report:

2. Hosain v. Malik, 671 A. 2d 988 (Md. Ct. Spec. App. 1996).

Hosain (wife) and Malik (husband) lived in Pakistan as a married couple for approximately eight years before Hosain fled to the United States with the couple’s daughter. Malik filed for custody of their daughter in a Pakistani court. Hosain did not appear before the Pakistani court because she would have been arrested in Pakistan for adultery because she lived with a man after she fled to the United States. The Pakistani court granted custody to Malik. Malik requested that American courts recognize and enforce the Pakistani custody order via a mechanism known as comity. A Maryland trial court granted comity to the Pakistani custody order. On appeal, the Maryland appellate court affirmed the trial court and granted comity to the Pakistani custody order holding that the Pakistani court considered the best interests of the child in granting custody to Malik. However, the minority opinion disagreed that the Pakistani court considered the child’s best interest and instead focused on factors outside of the “best interests of the child” analysis. These other factors included that the child would live in an “un-Islamic” society if it were allowed to remain with Hosain in the United States.

Anyone familiar with Islamic culture in Pakistan knows that the wife would have risked her freedom and well-being — and probably her life — if she had returned to Pakistan to argue her case. The blatant reality of the status of women under sharia should have informed the court to place no weight on her failure to appear in court in her homeland.

But the majority decided to take the legal superstructure of Pakistan at face value — recognizing the legacy of British colonial law as if it were a legal reality, instead of a thin veneer covering the practice of sharia — and judge the mother accordingly.

The majority opinion, as detailed on pages 282 ff., focused on whether the Pakistani court used the “best interest of the child” as primary criterion for making a judgment:

Turning to the heart of this appeal, appellant argues that the circuit court erred in determining that appellant failed to prove that Pakistani law was not in substantial conformity with Maryland law. In this regard, appellant’s argument is two-pronged: first, appellant maintains that the Pakistani court did not apply the “best interest of the child” standard to the case at hand, although the standard exists in Pakistan; and second, even if the Pakistani court did apply the best interest of the child standard, the rules of law and procedure that the Pakistani courts followed were contrary to Maryland’s public policy. Before addressing these arguments, we feel constrained to make certain critical observations.

Devotees of our national sports pastime agree that what is most important for a batter is to keep his or her eye on the ball. So too must we be guided in our review herein. Lest there be any confusion about our assigned task on this appeal from the limited remand hearing below, we must bear in mind what this case is not about. This case is not a review of legal determinations of the circuit court. Neither is this case about whether a Pakistani trial judge or a Maryland trial judge reached the “right” decision, for both judges are entitled to deference as to their factual findings; in other words, they have the right to “call them as they see them.” Significantly, this case is not about this Court undertaking the task of acting as a fact finder in place of the circuit court or substituting its judgment for that of the Pakistani court. And, this case is 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.

More specifically, the resolution of this case is about our limited and focused task as derived from the very narrow and specific function of the circuit court on remand from Malik.…

Having issued that very limited mandate, it is crystal clear that the task of the circuit court on remand was straightforward and simple. Thus, the circuit court was obliged to hold an evidentiary hearing to determine (1) whether the Pakistani courts applied the “best interest of the child” standard or its equivalent, and (2) whether the procedural and substantive rights applied to the litigants before the Pakistani courts were such that confidence in the outcome there was undermined. Accordingly, faithfully adhering to our mandate and following Malik‘s simple road map, the circuit court conducted an evidentiary hearing wherein two experts testified — Dr. Malik for appellant and Justice Dogar for appellee. Based on their testimony, the circuit court concluded that the testimony presented by Justice Dogar supported a finding that appellant failed to meet her burden of proof on the two matters that she was required to prove under Malik.

The circuit court having made that determination — a factual determination — we cannot now reverse the judgment of the circuit court unless we find the circuit court’s determination to be “clearly erroneous.”

[…]

The evidence was overwhelming that, as a general principle, Pakistan follows the best interest of the child test in making child custody decisions. Both experts testified that the Guardians & Wards Act of 1890 applies to child custody disputes. Section 7 of the Act authorizes a court to appoint a guardian for a child where “the Court is satisfied that it is for the welfare of a minor…”

[…]

Appellant, however, argues that, under this Court’s mandate in Malik, it is not enough that Pakistani law merely recognizes that the best interest of the child standard controls matters of child custody. Rather, appellant maintains that Malik required the circuit court to determine whether the Pakistani courts in this case actually applied that standard, and that the circuit court “erred in finding that the Pakistani court applied the best interest of the child standard” because the decisions of the Pakistani courts were “based solely on the mother’s failure to appear in the Pakistani proceedings.”

We agree with appellant that the first part of our mandate in Malik required the circuit court to deny comity to the Pakistani order if appellant could prove that the Pakistani court did not apply the best interest standard to this case. Malik, […] In other words, appellant is correct that it was not enough under our mandate for the circuit court to merely find that the best interest of the child standard is the law in Pakistan in child custody disputes. We are persuaded, however, that substantial evidence before the circuit court indicated that the Pakistani courts in fact applied the best interest of the child standard.

Preliminarily, we shall address appellant’s argument that the Pakistani courts’ sole reliance on appellee’s evidence because of appellant’s absence from the Pakistani proceedings rendered it impossible for the Pakistani courts to have actually applied the best interest of the child standard. A fair reading of the record reveals that the courts in Pakistan considered appellee’s evidence, including appellee’s denial of appellant’s allegations, and concomitantly refused to accord weight to those allegations. Appellee’s expert testified that, as a matter of practice, the only way the Pakistani court would have considered appellant’s allegations is if she had appeared in person to substantiate them. Since she did not, according to appellee’s expert, the Pakistani court did not consider those allegations.

This, however, does not mean that the first prong of our mandate in Malik was not satisfied. That the Pakistani court may have considered only appellee’s evidence and refused to give credence to appellant’s allegations in making the best interest of the child determination does not render that determination defective for purposes of granting comity to the Pakistani order under our mandate in Malik.

The judge went on to explain that a custody determination “in the best interests of the child” could be made in a Maryland court in the absence of one of the parties to the dispute, provided that it could be demonstrated that the missing party had been given ample notice and the opportunity to appear.

The Pakistani justice system is thus assumed to be essentially equivalent to its American counterpart:

Thus, in Maryland a court will proceed with a child custody determination in the absence of one of the parents. Moreover, appellee denied appellant’s allegations during the Pakistani proceeding.

We do not find, therefore, that the best interest of the child test was not applied in Pakistan because of appellant’s failure to put on a case. Justice Dogar testified that a natural presumption is drawn from one’s failure to present evidence. This is not unique to the courts of Pakistan.

[…]

Indeed, had this case originated in Maryland, and had appellee been the one who failed to appear to testify or present evidence through other persons, after having received proper notice, our circuit court would be obliged to proceed on the evidence before it. This would not mean, however, as appellant suggests, that the circuit court would not have applied the best interest test. Quite to the contrary, this simply would mean that the circuit court applied the test using the evidence before it.

In this regard, the Pakistani court proceeded in virtually the same manner in which a Maryland court would have proceeded had a parent failed to appear. Under these circumstances, therefore, we shall not condemn the Pakistani court for doing substantially that which a Maryland circuit court would have done.

Our view is bolstered by the uncontroverted fact that appellant had notice and an opportunity to present her side in Pakistan, but decided against doing so.

[…]

In sum, therefore, the fact that the Pakistani courts relied exclusively on appellee’s evidence, without consideration of appellant’s evidence in support of allegations, did not, of itself, make it legally impossible for the Pakistani courts to have applied the best interest of the child test.

It gets worse. Despite the assumed “sameness” of the two venues, the appellate court determined that the conditions providing for “best interest of the child” in Pakistan might be different from those in Maryland, and that a Maryland court could and should not try to determine compliance with those standards.

Cultural relativism rules in Maryland!

We now address whether substantial competent evidence existed from which the circuit court could have determined that the best interest of the child standard was in fact applied in Pakistan. Preliminarily, we believe it beyond cavil that a Pakistani court could only determine the best interest of a Pakistani child by an analysis utilizing the customs, culture, religion, and mores of the community and country of which the child and — in this case — her parents were a part, i.e., Pakistan. Furthermore, the Pakistani court could only apply the best interest standard as of the point in time when the evidence is being presented, not in futuro, the Court having no way of predicting that the child would be spirited away to a foreign culture…

Based on a plain reading of the Pakistani court orders, we hold that the trial judge was not clearly erroneous in finding that the Pakistani courts applied the best interest of the child standard to this case.

[…]

After reciting the facts of both sides of the dispute, the court set out to determine specifically “[w]ith whom the welfare of the minor [l]ies.” In so doing, the court set forth the testimony of appellee. Appellee testified that appellant is living a “sin life” with her lover in the U.S., and that his daughter is not being properly cared for by appellant. In addition, appellee testified that when his child lived in Pakistan he paid for her to attend the St. Joseph School where she received an Islamic education, but that the child is not now receiving an Islamic education in the U.S. Moreover, appellee testified that appellant is controlling the child through fear, and that appellant lacks moral character. Appellee also informed the court of appellant’s failure to comply with a Pakistani court order. Appellee further stated that the man with whom appellant was living was a stranger to the child. In sum, appellee’s testimony before the Pakistani court was that the welfare of the child will suffer in the hands of appellant and her lover.

The Pakistani court then noted that appellant did not challenge or rebut appellee’s testimony, “though she was given full chance for the same purpose.” In addition, the court observed that appellant’s counsel “also failed to argue the matter.” Based on this uncontradicted evidence on the record, i.e., appellee’s testimony, the Pakistani court reasoned that custody should be awarded to appellee in the interest of “the welfare and well being” of the child…

We believe it is pellucid that these orders unambiguously indicate that the Pakistani courts did in fact apply the welfare of the child test in awarding custody to appellee. [emphasis added]

The judge failed to acknowledge the elephant in the room: a Pakistani court can only apply the “welfare of the child” as understood under Islamic law.

An Islamic court passing judgment under Islamic law can never recognize any legal principles except those provided by the sharia, which are manifestly deficient with respect to the rights of women and children, as such rights are commonly understood in the West.

But cultural relativism trumps everything, even in a Maryland appellate court:

To be sure, were we standing in the shoes of the Pakistani judge, we might have given greater or lesser weight to the various factors at issue, thereby reaching a different conclusion. Moreover, we would certainly give great weight, as a Pakistani judge, to the impact tearing a child away from his/her cultural and religious moorings would have on the child’s best interest. On this appeal, however, it is not our function to consider how we would have applied the best interest of the child standard, nor is it that of a Pakistani appellate court reviewing the merits of the Pakistani lower court’s determination.

[…]

We reject appellant’s argument that the Pakistani court applied a rule of law so “contrary to Maryland’s public policy as to undermine confidence in the outcome of the trial,” when it allegedly based its child custody order only on evidence that appellee presented. Initially, we observe that we are not called upon here to pass judgment on a trial by fire, trial by ordeal, or a system rooted in superstition, or witchcraft.

That is, the judge made the astounding assertion that the validity of a trial by fire is not something on which a Maryland court may render a legal opinion.

In other words, two core principles of Politically Correct Multiculturalism have been applied by the judge in this case:

1.		“All cultures are equal, and merit equal treatment”, and
2.		“Who are we to judge?”

As we all know, when a PC MC savant denies he has the authority to “judge”, he invariably comes down on the side of the customs practiced by “brown people”, especially when those brown people are Muslims.

The principle of “cultural equivalence” becomes quite blatant a little farther on in the judge’s opinion:

On the record before us, we cannot determine whether Pakistani law lacks conformity with Maryland law. We can, however, resolve the narrow issue of whether the Pakistani order should be denied comity because there is a paternal preference in Pakistani law. If the only difference between the custody laws of Maryland and Pakistan is that Pakistani courts apply a paternal preference the way Maryland courts once applied the maternal preference, the Pakistani order is entitled to comity.

Once again:

“Whatever bad things the Pakistanis might have done in the past, we’ve done the equivalent. Who are we to judge?”

The court could find nothing in the disposition of this case that involved “principles of law repugnant to Maryland public policy” because it was not allowed to look.

The spirited dissent written by Judge Hollander is worth reading. But even that does not dare to deviate substantially from PC MC rules; it simply argues against the majority decision based on technical points of the law.

What seem like plain facts to regular readers of this blog — that the mother could not possibly have received a fair hearing in Pakistan as Westerners understand it, and had good reason to fear for her life if she returned — are simply not admissible in a court of law.

Such is the dhimmified state of American jurisprudence.