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Syariah BERTENTANGAN dgn Pengadilan2 AS****

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Syariah BERTENTANGAN dgn Pengadilan2 AS****

Postby ali5196 » Fri Jan 13, 2012 4:33 pm

Shariah in American Courts: A total of 50 cases from 23 different states involving “conflict of law” between Shariah and American state law......
http://shariahinamericancourts.com/?page_id=14


Purview
This study evaluates published appellate legal cases that involved “conflict of law” issues between Shariah (Islamic law) and American state law. For every case in this sample drawn from published appellate legal cases, there are innumerable cases at the trial level that remain unnoticed except by the participants. Thus, this report is a only a sample of possible cases—a “tip of the iceberg”—of legal cases involving Shariah in local, state and federal courts.

Our findings suggest that Shariah law has entered into state court decisions, in conflict with the Constitution and state public policy. Some commentators have said there are no more than one or two cases of Shariah law in U.S. state court cases; yet we found 50 significant cases just from the small sample of appellate published cases. Others state with certainty that state court judges will always reject any foreign law, including Shariah law, when it conflicts with the Constitution or state public policy; yet we found 15 Trial Court cases, and 12 Appellate Court cases, where Shariah was found to be applicable in the case at bar. The facts are the facts: some judges are making decisions deferring to Shariah law even when those decisions conflict with Constitutional protections. This is a serious issue and should be a subject of public debate and engagement by policymakers.

Purpose
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 policymakers’ 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. Institutionalized, authoritative Shariah doctrine is comprehensive and by definition without limit in its ambitions and scope. It includes legally mandated, recommended, permitted, discouraged and prohibited practices that are explicitly biased against women, homosexuals, non-Muslims, former Muslims and those designated as blasphemers.

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 addition, there are organizations and individuals within the United States actively and openly advocating for the establishment of Shariah law in America, especially for personal status and family law. A prominent one is the Assembly of Muslim Jurists of America[1] (AMJA) with more than 100 members including local Imams and Shariah authorities across America, as well as Shariah authorities from other countries. AMJA promotes the adherence to Shariah law when possible in all legal and civic activities by Muslim Americans, and in some cases, by non-Muslims.

Given these stated goals of AMJA and similar organizations, this study was conducted to discover the extent to which Shariah law had in fact entered U.S. state courts. News reports have identified individual cases of plaintiffs, defendants or judges citing Shariah or Islamic law. Many groups and individuals have raised concerns about state courts citing foreign and transnationalist laws and precedents, including Shariah law. The American Public Policy Alliance, a non-partisan organization that advocates for the Constitutionality of U.S. and state laws and public policies, has drafted the American Laws for American Courts Act (ALAC) to prevent enforcement of foreign legal decisions that violate Constitutional protections and liberties. That ALAC Act, which has passed in Tennessee, Louisiana and Arizona and to date has not been legally challenged on any grounds, was used as a methodological tool to define which Shariah-related cases in state courts were in conflict with the Constitution or state public policies.

Methodology
This study is based on research and analysis conducted in 2010 and 2011 by the Center for Security Policy and the offices of the Center’s general counsel, attorney David Yerushalmi. Initial identification of potential cases was done by counsel, CSP staff and interns, and citizen volunteers from the non-profit organization ACT for America. Information regarding state cases reported upon here was retrieved through Google Scholar using search terms including “Islam,” “Islamic” “Muslim,” “Sharia” and “Shariah.” Additional search terms were country-specific: “Iran,” “Pakistan,” “Egypt” and “Saudi Arabia,” all countries with Shariah-centric legal systems.

The sample we reviewed was only “the tip of the iceberg,” because Google Scholar is not a complete database of state cases involving Shariah. As a search tool it only allows retrieval of those reported appellate and trial court level cases that are available through open sources (See “Future Directions,” below). We found an initial sample of approximately 150 cases involving Shariah doctrine, which were narrowed to a set of 50 cases designated Relevant or Highly Relevant.

Ratings
Of the 50 cases considered, 29 were rated “Highly Relevant,” meaning that upon legal review they were found to involve Shariah in a conflict of law with the Constitutional principles or state public policy at the trial court or appellate court level. The remaining 21 cases were rated “Relevant,” meaning that a significant element of Shariah law was involved at the trial court or appellate court level.

In addition, we evaluated whether the Trial Court (TC) and Appellate Court (AC) decisions were Shariah-compliant (SY), not Shariah-compliant (SN), indeterminate (SI) or not applicable (SNA). For example, a decision deemed to be Shariah-compliant at the trial court level was labeled “TCSY,” while a decision deemed non-Shariah-compliant at the appellate level was labeled “ACSN.”

Findings
This study analyzes and discusses a total of 50 cases from 23 different states: 6 cases were found in New Jersey; 5 in California; 4 each in Florida, Massachusetts and Washington; 3 each in Maryland, Texas and Virginia; 2 each in Louisiana and Nebraska; and 1 each in Arizona, Arkansas, Delaware, Illinois, Indiana, Iowa, Maine, Michigan, Minnesota, Missouri, New Hampshire, Ohio and South Carolina.

The 50 cases were classified into seven distinct “Categories” of dispute: 21 cases deal with “Shariah Marriage Law”; 17 cases involve “Child Custody”; 5 deal with “Shariah Contract Law”; 3 deal with general “Shariah Doctrine”; 2 are concerned with “Shariah Property Law”; 1 deals with “Due Process/Equal Protection” and 1 deals with the combined “Shariah Marriage Law/Child Custody.”

In addition, the cases were also assessed as to whether or not the ultimate decision of the court was in accordance with Shariah law at both the Trial Court and Appellate Court levels:

At the Trial Court level: 22 decisions found that the application of Shariah was at odds with the state’s public policy; 15 found Shariah to be applicable in the case at bar; 9 were indeterminate; and in 4 cases Shariah was not applicable to the decision at this level, but was applicable at the appellate level.

At the Appellate Court level: 23 decisions found that the application of Shariah was at odds with the state’s public policy; 12 found Shariah to be applicable in the case at bar; 8 were indeterminate; and in 7 cases Shariah was not applicable to the decision, but had been applicable at the trial court level.

Across the 50 cases there were 16 foreign countries from which Shariah-based legal conventions or decisions were brought to bear upon the case. Some cases made reference to more than one country while others involved Shariah law without reference to a specific foreign country. Among the cases that referenced Shariah law in a foreign country: 6 each were from Saudi Arabia, Iran and Lebanon; 4 were from Egypt; 3 each were from Pakistan, Jordan and Morocco; 2 each were from India and Iraq; and 1 each was from Afghanistan, Algeria, Gaza [sic], Israel, the Philippines, Syria, and the United Arab Emirates (UAE).

One Arizona case, number 7 in the Top 20 summarized below (Number 7. Nationwide Resources Corp. v. Massabni, Massabni, and Zouheil, 143 Ariz. 460, 694 P.2d 290 (Ct. App. 1984)), was unique in having multiple conflicts of law. At the Trial Court level, the judge arbitrarily applied the foreign Islamic law of Morocco, even though the parties were neither Moroccan nor Muslims; at the Appellate Court level, the judge applied the foreign law of Syrian Christians (the parties’ actual background), which still created a conflict with the public policies of Arizona.

Future Directions
Google Scholar, the open source database used to identify published cases, is not a complete data base of state cases involving Shariah because as a search tool it allows retrieval only of those reported appellate and trial court level cases that are available through open sources. Google Scholar explicitly does not include within its knowledge bases those judicial opinions not published, decisions rendered by order and not by opinion, and those cases settled or terminated prior to a judicial opinion. Google Scholar will also not retrieve jury verdicts that are not otherwise challenged and ruled upon by the court. Consequently, the reported cases represent only a small sampling of the total cases that likely involve Shariah in the courts. Therefore, one area for future research should assess a more comprehensive sample, possibly resulting in a larger and more varied set of findings of types of conflict of law presented by Shariah in U.S. state courts.

Second, a similar assessment should be done using U.S. federal legal cases (this study looks only at cases from courts in the the 50 states) as the study sample, using either the Google Scholar small sample of Appellate Court cases, or a larger one including a broader set of Trial Court cases that did not reach Appellate Courts.

Third, in the course of conducting this study, we identified another set of cases which we excluded from this paper, but which we plan to assess in a second paper: Shariah-motivated crimes and disputes, up to and including murder, in which a party in the case cites some precept from Shariah doctrine as his or her rationale for a crime or dispute. These cases were then litigated or prosecuted entirely without reference to Shariah law, just as regular crimes or disputes. We suggest that these cases should be assessed from a public policy, sociological or criminological perspective. They include, for example, Shariah-motivated honor killings that are subsequently prosecuted simply as murder; assault or murder against an alleged “blasphemer against Islam” which is subsequently prosecuted as a regular crime; and jihadist violence against institutions or persons, which is subsequently prosecuted as a regular crime without reference to the doctrinal motivation. In all the cases we have found in this category, the parties themselves identified their motivation as driven by Shariah or Islamic law.

A fourth area of research, one that is already being addressed by other researchers, is the imposition of Shariah laws on non-Muslims and Muslims alike in the U.S., particularly in the area of Shariah blasphemy laws applied through political pressure and “lawfare” to censor free speech that is factually descriptive of, or critical of, Shariah doctrine and its applications. This is also a conflict of law issue though not covered in this paper, because it involves the conflict between Shariah blasphemy (aka “Islamophobia”) doctrines and the Constitutional protection of free speech.

Finally, a fifth area for further research is the body of labor law cases and EEOC cases, to gain a deeper understanding of both cases of reasonable accommodation to Shariah practices which are comparable to other workplace accommodations, and those cases which are “unreasonable” accommodations where another religious or employee group may be disadvantaged because of a preference for – indeed, an establishment of – Shariah doctrine as superior to others.

We suggest that this study, and any future studies on the conflict between Shariah and public policy including Constitutional liberties and protections, are urgently needed to inform the ongoing public debate, and to assist legislators and civil society leaders in clarifying public policy relative to Shariah law.

Components of This Publication
To help readers of this study, we provide the findings in a variety of formats including statistical summaries and full-text published decisions for all 50 cases, including:

1.Background
2.Top 20 Cases
3.Statistical Presentation of Data
4.State Cases, in alphabetical order by State
5.Appendices

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[1] Andrew Bostom and Al-Mutarjim, “Chairman King: Subpoena the Assembly of Muslim Jurists of America,” Pajamas Media, March 1, 2011 http://pajamasmedia.com/blog/congressma ... rica-amja/
ali5196
 
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Re: Syariah BERTENTANGAN dgn Pengadilan2 AS****

Postby ali5196 » Fri Jan 13, 2012 4:35 pm

ali5196
 
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