Tuesday, September 14, 2010

Sharia

Sharia. It seems to be the new "buzz word" that people, particularly conservatives, keep getting all up in arms about. I am not going to say other people do or do not do their own "homework" because honestly I don't know, but as a Magic 8 Ball would say, "signs point to no." Why do I think that? Because it seems while this word is thrown around so much, largely as a scare tactic and a way to oppose anything having to do with the Muslim religion and culture in America, nobody I've come across personally can actually correctly define Sharia law. And so, to better grasp what it is in the first place, and why people are so opposed to it, I went in search of answers. And after hours upon hours of research, I still barely understand it. But here's my feeble attempt anyway, for whatever its worth.

The argument I hear by conservatives is that Sharia law is leaking into both American culture and her courts, and that the powers that be are allowing it, and that pretty soon Sharia "law" is going to basically take over America as we know it.

First of all, from my understanding, there is moral/personal Sharia - the moral, ethical, religious, and highly personal governance of one's own life by Sharia law. And there is legal Sharia - Sharia as it applies to legal matters. Yes, they are intertwined somewhat, but that doesn't mean they share the same function. The way I compare it to make it relevant to myself is the differentiation between Christianity being the framework by which I govern my own personal life, and the Constitution being the framework by which I abide by my country/culture's laws.

Secondly, Sharia itself is largely hard to define - both personal and court Sharia - because so much of it isn't "nailed down." Some comes straight from the Koran or other esteemed Muslim writings. But a lot of it also comes from.... Honestly, nobody knows where. It is based in large part on tradition and things accepted as "Muslim," however much of it appears nowhere in print. At least Christian Americans can say their convictions come from written sources - morally/personally from the Bible, and legally from the Constitution.

Read -here- for excellent information about this, including passages taken from the Koran and other Muslim writings. (Just be forewarned, some pop ups may come up when you click on the page...annoying and detracting, but I promise, the article is well worth the read.)

Now maybe its just bacause I am a Christian American, but I find the whole idea of a moral and legal code that isn't in written form unsettling. A code of any kind that isn't defined is one that is open to biases, corruption, usage for personal power and/or notariety, personal gain, manipulation, inaccurate translation and application...and the list is endless. Therein lies the fundamental flaw, in my eyes, within Sharia, and why I don't believe it will EVER be tolerated by or used for legal purposes within our courts. Even in matters pertaining to one's personal ethics. And here's why.

NO citizen in America, regardless of their religion, gets a free pass on murder (honor killings) or spousal or child abuse. Pre-meditated murder = life imprisonment or death sentence - end of story. People make the argument that honor killings have been permitted in America. This is absolutely untrue to the best of my knowledge. There is one case I know of where a man has been convicted and is on the run, but once caught, that man WILL be brought to justice for his heinous crime. Further, as for "eye for an eye retribution," that is also shot down hard by the Eighth Amendment's guideline for fair trials and justice to be carried out. "...nor cruel and unusual punishments inflicted." A court would never allow someone to enact retribution on another that is "cruel and unusual," such as, for example, crashing their car into someone because they killed their relative in a drunk driving accident.

In other countries, yes, some heinous acts of Sharia have been permitted or "swept under the rug" based on what I can only define as "religious exemptions." However, in America, that would be unconstitutional. It would be showing religious favortism, which is contrary to the Constitution's First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

This protects our rights to our religion, but it also protects one religion from being esteemed over another. To make an exception/exemption on a moral or legal matter which violates Constitutional law, would be in and of itself unconstitutional. So to permit or downplay honor killings, spousal abuse, child abuse, eye for an eye retribution, or anything else that is prosecuted by the law of the Constitution based on one's religion would be unconstitutional.

Still not convinced? Think of it this way... This is America. In America, regardless of whether or not you're a citizen of this country, if you're on our soil and commit a crime, you answer to our laws and legal process - NOT that of the country from which you immigrated or are visiting. And most, if not all, countries around the world have that same structure. Most other countries' legal processes/customs are a lot more harsh and their systems are a lot more corrupt and biased, but ultimately, you are to answer to the legal process of the country in which you commit the crime. It may not seem right, and it may not seem fair, but that's how it works. To ask that your own legal process be used in another country's courts is ludicrous to begin with! You would be laughed at for even asking!

But for the sake of argument, let's look at what would happen if we even tried to allow Sharia in our courts.

To cross-reference, here's the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

And here's the Sharia. These references are taken from -Wikipedia- but have been collaborated by a number of other sources. I am going to break it down with my own comments/dissections.

-- Sharia courts do not generally employ lawyers; plaintiffs and defendants represent themselves.

So a Muslim wants to use Sharia. Great, then they waive their right to legal representation. In my opinion, that is a really stupid legal move, but okay, fine, that's their right. It probably won't work very well in their favor - it will make for a VERY weak case, since an "Average Joe" doesn't know the court system the way an attorney does - but whatever, that's their choice. If they want to waive the right and have little to no strong case and probably therefore lose their legal battle, then fine. No skin of my nose.

-- Trials are conducted solely by the judge, and there is no jury system.

So much for a "public trial, by an impartial jury." The Sixth Amendment pretty much shoots that down to begin with, which is enough right there. But for the sake of argument, even if it was decided that a jury not be present, that is putting your fate in the hands of one person - one person who may have missed things, has biases, etc. In my opinion, not wise.

-- There is no pre-trial discovery process...

This would not lead to a fair trial AT ALL! Things would be VERY skewed! Without a pre-trial discovery process, crucial evidence isn't obtained, so never entered into court. This could cause a guilty person to go free, or an innocent person to be charged. It is crucial to the process in order to maintain an "unbiased" trial! I just cannot foresee our courts, under constitutional law, EVER conducting a legal proceeding without it.

-- ...no cross-examination of witnesses...

Again, this is integral to the Sixth Amendment's guidelines "to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor..." And without cross-examination, you are only hearing one side of the story. This could either exhonerate a guilty party, or convict an innocent one.

-- ...and no penalty of perjury.

No penalty for lying?!? Well, if lying is permitted without penalty, then you know there will be a LOT more liars in court than there already are! Wow, can we say corruption of justice?? If this were ever to happen, then yes, that would be a scary thing, because it would undermine the entire legal fundamentals of American justice!

-- Instead of precedents and codes, Sharia relies on medieval jurist's manuals and collections of non-binding legal opinions, or fatwas, issued by religious scholars (ulama, particularly a mufti); these can be made binding for a particular case at the discretion of a judge.

Non-binding opinions? Issued by religious scholars? Made binding at the discretion of a judge? Did these stick out like sore thumbs to anyone beside me?!? This would mean an ever-changing, ever-open-for-discussion, nothing-set-in-stone legal system. The Constitution IS set in stone! It cannot be changed on the whim of one judge or religious leader, and is hard to misinterpret, especially since our legal guidelines are pretty airtight. I take comfort in knowing what (hypothetically) would be facing me BEFORE I stand trial, and not be at the mercy of the judge, based on what the religious "scholars" are telling him/her! And fortunately, with the Constitution, I can go into any court knowing what to expect, and knowing its not subject to change based on the "gospel" of any religious leader or the discretion of any judge. Shot down by the Sixth Amendment once again!

-- Sharia courts' rules of evidence also maintain a distinctive custom of prioritizing oral testimony and excluding written and documentary evidence (including forensic and circumstantial evidence), on the basis that it could be tampered with or forged, or possibly due to low levels of literacy in premodern Islamic society. A confession, an oath, or the oral testimony of a witness are the only evidence admissible in a Sharia court, written evidence is only admissible with the attestations of multiple, witnesses deemed reliable by the judge, i.e. notaries.[107] Testimony must be from at least two witnesses, and preferably free Muslim male witnesses, who are not related parties and who are of sound mind and reliable character; testimony to establish the crime of adultery, or zina must be from four direct witnesses. Forensic evidence (i.e. fingerprints, ballistics, blood samples, DNA etc.) and other circumstantial evidence is likewise rejected in hudud cases in favor of eyewitnesses, a practice which can cause severe difficulties for women plaintiffs in rape cases.

Sorry for such a big chunk on this one, but it all makes pretty much the same points over and over, but better than I can, so there ya go. Basically, with Sharia law, any evidence other than verbal testimony is rejected. No forensics, no circumstantial, no written, nada. However, the majority of the most heinous crimes, such as murder, rape, etc., HAVE NO WITNESSES!! So we're supposed to reject forensics, physical evidence, cirumstantial evidence, and written evidence in favor of the testimony of a suspected murderer or rapist?!? Are you kidding me?!? Basically, all the evidence says the perp is guilty, but he gets off scott free because, well, he says he's innocent?!! Oh, and I'm sure his cronies testifying on his behalf are all credible witnesses who are telling the truth and were there to witness him raping some poor woman. Yeah...of course they were. And obviously, their testimony is better and stronger than the victim's because, well, they're men, and men are always so much more honest and credible. Of course they are. (That was sarcasm, if you couldn't tell.) Sarcasm aside, this would NEVER fly in an American court of law! NEVER! We find the evidence, process it, and USE it, and let the EVIDENCE have a voice. To silence the evidence is to silence the most credible witness.

-- Testimony from women is given only half the weight of men, and testimony from non-Muslims may be excluded altogether (if against a Muslim). Non-Muslim minorities, however, could and did use Sharia courts, even amongst themselves.

Yeah, that'll make for an impartial trial. Mm hmm. And besides, I'm sure all the women's rights activists will just roll over and let that happen! (Sarcasm again.)

-- Sharia courts, with their tradition of pro se (self) representation, simple rules of evidence, and absence of appeals courts, prosecutors, cross examination, complex documentary evidence and discovery proceedings, juries and voir dire (oath of honesty and honor) proceedings, circumstantial evidence, forensics, case law, standardized codes, exclusionary rules, and most of the other infrastructure of civil and common law court systems, have as a result, comparatively informal and streamlined proceedings.

This is Wiki's summary, so I'll offer mine. (Oh goody. As if you haven't read enough of my mumble jumble already, right?!) Basically, by my interpretation, their system is one entirely of "he said, she said." Nothing is concrete, and its highly biased and wishy-washy. It is open to interpretation, changes, corruption, selfish usages, and therefore, I'm sure, results in many (if not mostly) false convictions and exhonerations.

By contrast, the US Constitution is concrete. It doesn't change, it doesn't bend, and if implemented properly, cannot be penetrated by corruption or used for ones' own personal motives. Each person walking into a court knows what to expect. They know its going to allow them a speedy, fair, public trial by an unbiased jury. They know there will be witnesses who will be cross-examined, and forensic, physical, circumstantial, and written evidence will be allowed to speak for itself and for the victim.

Ultimately, Sharia itself - moral and legal - is different from person to person. Each person defines it differently, and since there is no concrete governing document (for either facet, but especially legal) by which to base, well, anything really, then I cannot believe it will ever come to pass here in America. How can something undefined overrule and overthrow the defined?

Bottom line, as long as the Sixth Amendment stands, then Sharia never will. And based on that, I don't live in fear of Sharia. Do I like it? No. Would I ever use it to live by in my own life? Never. Would I (given the choice) want to use it in a court of law? No way. But because of my Constitution, and the court system in my America, I don't live in fear of it. Sure, its an interesting time and world in which we live. But this is America. Its Constitution is POWERFUL, and I have faith in it and in my country, that it will never be torn down in favor of a system that is so fundamentally flawed, ineffective, and biased. That's not what America is about - not when the Constitution was written, not now, and (hopefully) not ever. I think we'd have to get both really stupid and really lazy before we'd ever practice Sharia in our courts, or permit the aspects of it which violate constitutional and human rights in our culture. And I like to believe we're smarter than that. ;)

7 comments:

Liberty said...

Would you mind terribly if I reposted this on my blog? :P I have some readers who need to see it. I'll give credit, etc... :)) Or I could just give a link...either way...

Megan said...

Go for it! I am flattered that you want to use it. :)

Tragedy101 said...

Terrorist suspects are exempted from Fifth Amendment protections. But that would never happen with the Sixth Amendment. Is this what you are saying?

Does this sound logical to you?

What if the option is permitted that when a muslim is charged with a crime he may appeal to Sharia law instead of our courts? This is what is happening in England, which is why I think it is possible.

Such an option would be reasonable to protect us from "radical muslims." Kind of like: To protect us from suspected terrorists, we suspend the protections of the Fifth Amendment.

Megan said...

Tragedy -

Part 1:

You are incorrect in saying that terrorists are exempt from the 5th Amendment. This is not at all true. Its what a few select politicians, such as McCain and Leiberman, would *like* to see happen, but its not been ruled on and I highly doubt will be passed. At the point we start making exceptions, exemptions, and picking and choosing who gets their rights and who doesn't, we open a whole Pandora's box. If one exception is made, then it opens a tiny hole in that system that has the potential to grow larger and larger. Do you get what I'm saying?

Furthermore, so what if a terrorists, or anyone else for that matter, wants to "plead the 5th" and not incriminate himself? If they've done what they're accused of, again, the evidence WILL speak for itself. For example, with or without his own testimony, we still have hard, cold evidence that he committed a crime. And as an American citizen, Shahzad is entitled to his Miranda rights whether we like it or not - and he IS an American citizen.

Also, if we make this exemption, what happens to "innocent until proven guilty?" We could be stripping a perfectly innocent person of their Miranda rights! Again, we cannot pick and choose who is entitled to their rights and who isn't. The system has to be a fair playing field, even if that makes a number of Americans uneasy. But come on, if we made exceptions for every single person who ever felt uneasy about something, then we'd have no system left at all. America would meet her end as we know it.

My whole argument to is that in America, due to the way our legal system is set up, NOBODY, terrorist or not, can use Sharia in our courts. I feel like maybe you missed the entire point of my post. There are aspects of Sharia that are legal in a court, such as waiving certain rights, BUT it would make for a VERY weak case on the part of the suspect. However, still, IF that suspect wanted to waive right to legal representation in favor of self-representation, he could. As for most other aspects of Sharia law, it would violate the Sixth Amendment, and therefore could never be permitted in court. I already made this point in my blog, but NO religion or cultural backround is permitted an exemption to a crime. Due to the First Amendment, it cannot. Again, there are a few aspects of Sharia, or any religion for that matter, that a person can *personally* implement that aren't unconstitutional, like waiving certain rights, but to expect their own system to be used in an American court IF its in violationor opposition of the Constitution is preposterous!

Megan said...

Part 2:

You made the argument that these exceptions have been made in England and other countries. But remember, their government and legal system are set up differently than ours. I don't know much about England's legal system, but maybe allowing religious exemptions is within their government's specifications. It is NOT within America's. To compare our legal system to that of any other country's is like comparing apples and oranges. Just because another country's government - even if it is *similar* - allows something, does not mean America will.

You say that taking 5th Amendment rights away is reasonable. On what grounds? As I mentioned above, its not even LEGAL! In America, it is "innocent til proven guilty," not "we assume you did something horrible, so we're going to deny you your rights, even though you haven't been tried by an impartial jury in an American court of law yet." I don't think I need to elaborate further on that point.

One final thing... I feel like you are trying to tear down my argument, and thusly the 6th Amendment, by way of the 5th Amendment. If one amendment can tear down another, then we have a fundamental flaw within our system. But the thing is...we don't. IF McCain, Leiberman, etc., get their way and this bill passes (which I don't think it will because its blatantly unconstitutional), then it will give the power for the 5th to tear down the 6th. If the 5th Amendment is no longer in accord with the 6th, then our whole legal system is going to buckle. Again, certain people may be *uncomfortable* with affording everyone their rights, but we cannot go removing someone's rights just because giving them their Constitutional rights make us uneasy. In America we use America's system. We don't change it, we don't make exceptions, we don't make harsh restrictions on a select populace.

Tragedy101 said...

I am not trying to tear at your argument just asking a serious question. You know never is a long time.

The Great Charter is the basis for English common law and American common law is directly tied to English common law as we used it in territories as far west as present day Colorado before, during, and after the War for Independence.

Sharia law is used today in America to settle non-criminal matters between Muslims. Sharia law is a judicial system. It is set up here, like in England, to decide these "non-legal" or "religious" matters. What has happened in England is some local petty crimes can (it is nonmandatory) now be tried by Sharia law rather than English common law. It is only in places that are heavily Muslim and takes petty crimes involving only Muslims off the packed dockets of the English court system. And it doesn't cost the government anything to let them settle these matters themselves.

Sharia law is very fluid in many ways and is very gender biased.

Trigger said...

It's a real threat and I'm not "islamaphobic" either.

http://www.washingtontimes.com/news/2010/sep/14/shariah-a-danger-to-us-security-pros-say/

Also - http://www.thereligionofpeace.com/