Sharia

Thanks goes to Megan of "The Mom and Wife Life" for her hard work and research on this article, originally posted on her blog. This subject is one that should be spoken about more often, but without the hysteria often provoked by conservative talking heads. So without further ado:

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. 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. ;)