Tuesday, January 30, 2007

You Want Justice, No?

Two strange legal cases caught my attention today. One is in Canada. A man and his female friend broke up. Unknown to him at that time, she had become pregnant by him. Upon their breakup, the woman decided to give up the baby for adoption. She contacted interested families and selected a couple. A contract was drawn up between the two parties. Upon birth of the baby, the new couple adopted the child.

The biological father than found out about the child. He sued to gain custody of the child. Even though a paternity test proved that the child was his, even though the law grants him rights, even though he proved he was deceived by the biological mother, the court decided, in the interests of the child, it would be best at this time to keep custody with the adoptive parents. The court ruled that the child was at a delicate emotional stage and had formed bonds with the adoptive parents and therefore ruled that the original contract between the mother and the adoptive parents was valid. It also ruled that the biological father would be granted more rights, but later, and not full custody at this time.
Smith (the judge) said in his ruling that the child's welfare must always be the most important consideration.[source]
Even though I disagree partly with the verdict, you can see where the ruling is coming from. It is stemmed from a desire to ensure the child's welfare is paramount. This is why laws in the West are constantly re-written because new situations arise and the judges are always urged to look beyond the letter of the law. This is why Canada was so opposed to mandatory minimum punishments because they treated each case on its own merits.

Now contrast this to the following ruling in a so-called Islamic court upholding so-called Sharia.
The Dubai Court of Cassation has upheld a verdict issued by the Sharia Court ordering the termination of a five-year marriage between a national woman and an Egyptian man after the wife's guardian filed a lawsuit against it saying it was solemnised without his consent. [source]
In other words, this was a man and a woman, happily married to each other, WITH A CHILD, for five years. And the judge saw it fit, "Islamically", to break up the family. All because the law of the land stated that for a woman to marry, she must have the consent of her guardian. The law of the land that is derived from the Maliki/Shafi schools of thought where a woman requires such a consent.

If you want to know why clear thinking Muslims should oppose Sharia in the West, it's because of dick-headed judges like these, who clearly have no concept of fairness and justice and cannot look beyond the boundaries of their tents. And from what little I have seen, the mullahs in the West who advocate Sharia are no better.

To those who says Islamic laws are final, unchangeable and just, I give you Caliph Umar's example, a man about whom the Prophet had said the following:

"If there was to be a Prophet after me, it would be Umar."

Umar realized that when the Sharia was imposed, the end result of each ruling must be to ensure that justice has prevailed. Upholding the letter of the law is not as important as ensuring that each ruling is just.

It was this spirit of justice that led to Umar to decide at one point during his Caliphate that he would not punish thieves who stole above a certain limit by cutting off their hands, as mandated by orthodox Islamic rule. At that time the Islamic empire was going through a drought and a plague, and people were forced to steal out of poverty. Umar decided that it would not be fair to punish those thieves who stole just enough to feed their family during the drought. The punishment to cut off hands is mentioned in the Quran, and IS A COMMAND of Allah, yet Umar felt it would not be just according to those circumstances, and so he temporarily suspended that law. All in the spirit of ensuring justice.

Yet today we break up families.

Once a woman brought a claim against the Caliph Umar. When Umar appeared on trial before the judge, the judge stood up as a sign of respect towards the Caliph. Umar reprimanded him, saying, "This is the first act of injustice you did to this woman!"

If you want justice, fair play and equal rights, it seems the non-Sharia laws of the West are more Sharia-like in spirit than the so-called Sharia laws of these Muslim countries!


Maliha said...

It's sad how we lost that vigor, clarity, that commitment to the "spirit" for a dead, zombie like kinda view of what Islam is about. We have essentially fossilized Shariah and made it dangerous by our idiocy.

sigh...then trying to explain this to a fair minded non Muslim without tripping on your words. It's just sad.

'liya said...

The contrast between the two cases side by side is interesting. It really makes you have to think...

What are people doing to Islam?

Anonymous said...

Muslims need to realize that we are becoming a danger to ourselves and doing more damage to the ummah from the inside than the demonization of Islam thats happening in the media can do.

Anonymous said...

Islam is such a beautiful religion but the muslims are just *messing* it up! :( sf

Farah said...

What I would really like to do...is to put sleeping pills on each of those imams/judges and shave off their beards... while they are sleeping...

This makes me so mad...

Safia said...

"It is stemmed from a desire to ensure the child's welfare is paramount."

I wonder why they determined the welfare of the child would be best served with the adoptive parents instead of the biological father? According to the article the child is only nine months old, I thought maybe he was a little older. I do feel for the father, it doesn't seem quite right, does it?

But I agree with your overall point. I've heard the famine story about Hazrat Umar before, and I think it shows that the point of Allah's laws is to promote justice, and the best Muslims of all time recognized this. I'm discouraged that sometimes we lose sight of this basic concept.

mezba said...

I have to add here the Islamic ruling about seeking the guardian's permission.

Of the four schools of Sunni thought, only Hanifi says the permission of the guardian is not a must for a wedding contract to be valid. The others, most notably Maliki and Shafi, say a wedding is invalid without the permission of the guardian. A more detailed explanation is found on Islam Online.

Which is why I say it is time to do away with Maliki, Shafi schools of thought on this matter. Clearly Hanifi makes the most logical sense in this regard. Maybe their rulings made sense in their times, I don't know, but not now.

In any case, the judge shouldn't have broken up the marriage. The Prophet himself was completely loathe to break up marriages and termed divorce as the most abominable of all permitted acts, which shakes the Throne of God.

Once a woman came to the Prophet and said her marriage had been forced upon her by her father. The Prophet did not break her marriage immediately, even though the marriage should have been invalid because the permission of the bride was not sought (a must in ALL 4 schools of thought). He first ASKED the woman if she wished to break up her marriage.

So even though the marriage could have been invalid when it occurred by law, that doesn't mean it must be now broken up by the judge.

In the Prophet's case, the woman replied "that she was quite happy with her husband, but just wanted to make a point that women ARE allowed to have a say in their marriage and forced marriages are not valid". (May Allah increase her reward in Paradise for her foresight)

So here, when the couple were happy in their marriage, the judge had no right to break it up, even Islamically speaking, no matter WHAT SCHOOL OF THOUGHT you follow.

Jaab miya bibi raazi, to kya karega kazi?

mezba said...

Maliha: "fossilized Shariah" I like it! Quite apt.

Liya: Just like Bollywood movies which find new ways to cycle the same old story year after year, we seem to find new ways to put our foot in our mouth every day of the year.

Ruby: This single incident tells me more about Islam's supposed rigidness and intolerance than all of Fox media.

sf, farah: totally *sniff*worthy incident. I would like to go four rounds with that judge in the ring.

safia: yes, I do disagree in parts with the Canadian court's verdict, but like you said, I was trying to highlight their intentions behind the verdict, and contrast it with the rigid to-the-letter approach of the "Islamic" court.

mezba: exactly, I ... oh wait that's me.

sonia said...

very sensible Mezba- spot on! it seems to me a lot of these 'so-called'sharia judges are more interested in being rigid than being just.

frenchita said...

hi mezba..nice blog..will read and get back..btw i live in a 'muslim' country.

Maleeha said...

Completely nonsensical ruling by the Islamic court. Its a sad day when the words "Islamic court" and "sharia in the west" make a Muslim law student shudder.

I must say though, that it is not so easy to say "do away with this one part of Maliki/Shafi schools of law" and make it stick. In order for new legal rules to have authority, they have to be grounded in tradition and precedent. I can give you examples of how previous jurists took the same seemingly problematic rule and came to a just conclusion. The problem occurs when so-called Islamic judges dont know the precedent of the judges that properly applied the tradition. I think the solution is to train the judges in the proper islamic legal tradition rather than throwing out the law.

M&M said...

both the verdicts made me cringe. i dont like either. they both seem to be lacking some sense

i am not too knowledgeable on the differnces of the schools of thought so no comment there but i find it odd to break a marraige after years of marriage life since islam always says that both parties including their families should try their best to uphold the marriage unless there is wrongdoing etc.

also a big problem with Muslims, even Muslim scholars is that they find it hard to separate religion from tradition, some traditions have become so instilled in the societies that the scholars/people sometimes neglect to look at the sunnah of the prophet and misinterpet stuff.

frenchita said...

mezba, this is what i've found out,

The Prophet (peace and blessings of Allah be upon him) said: “Any woman who gets married without her guardian’s permission, her marriage is invalid…” (Reported and classed as hasan by al-Tirmidhi, 1021).
And isn't there someone 'wali' supposed to be present? Wali should be the girl's father, and if he is not well emotionally or refuses to marry her to someone who's good in character and piety, then the guardianship is passed on to someone else.
So who was this woman's wali?

Suroor said...

Mezba, Thanks for this excellent post – there I go, the broken record but it’s your fault for being consistently excellent! The way you compared the two situations was marvelous.

Anyway, Sharaih law doesn’t appeal to me at all in TODAY’S world. Our judges don't have enough sense to be just and sensible. What can you say when in the UAE every public prosecutor MUST be an Emarati?! You can’t be any other nationality.

I’m writing something on the same topic – inefficient Shariah judgment because of an idiot judge - and the case I present actually petrified me beyond words.

luckyfatima said...

grrrr, both examples of idiocy but in the case of the paternity thing maybe the man is an alcoholic or something. there must be some reason to not allow custody...i don't know.

Abu Sinan said...

This is too much.

The Egyptian court are a bunch of idiots. The reason that Jesus came in the first place, I feel, is because the Jews had become too legalistic, missing the forest for the trees. You point demonstrates that 100%.

The end should be about justice, not sticking to the letter of the law even if it allows an injustice to be done.

As to the lady, the guy should be able to sue her in civil court and gain damages for suffering. What she did was beyond cruel.

Anonymous said...

Brother Mezba don't be fooled. This is more than it looks to clear eye.

The husband is Egyptian and the brother of wife is a national. It is clear that there was fight between husband and brother and brother is now getting back. He doesn't his sister's life is ruined, Arab men don't care.

Any court in Arabia will NEVER give judgment against its own nationals. Religion here is just excuse. You go to court against a local, you will lose whatever your case is. It's all about wasta, contacts,influence. It has nothing to do with Maliki madhab.

You have good blog interesting.

-- Disillusioned Arab

arafat said...

"laws in the West are constantly re-written because new situations arise and the judges are always urged to look beyond the letter of the law. This is why Canada was so opposed to mandatory minimum punishments because they treated each case on its own merits.

This remark is very interesting, because it gives a clue as to "what went wrong" with Islamic law. The irony, of course, is that it is modern Western law that's essentially codified, and it was Islamic law in the formative and the classical periods that had to necessarily treat each case on its own merit. The problem with both contemporary critics of Islamic law and the fundamentalist proponents of it, is that they're largely unaware of the multi-disciplinary complexities in this whole business: it is impossible to seriously engage with legal problems in Islam without appreciating the history of Islamic theology, of interpretation, of Muslim legal scholarship, of socio-political evolution in Muslim societies, of the complex impacts of modernity through Colonialism or otherwise, and etc.

I myself am hardly educated in these aspects, but even due to very minimal familiarity with some of it, I cringe when I read a statement like "why clear thinking Muslims should oppose Sharia in the West" or "mullahs in the West who advocate Sharia are no better" -- because, the question arises immediately: what, really, is Shari'a? We talk about Shari'a as if it's a well-formulated concept, a nice solid leather-bound book. But this attitude is an outcome of 20th c. reactionary Islamist thinking: we were so busy insisting on "God's law" against "Western law", we never realized that we had already appropriated fundamental elements of modern Western legal practice. We started talking about Shari'a as a code, when in fact it never was one. We started worshipping the notion of Shari'a as divine law, as a set of rules descended from God, when in fact it is nothing like that.

It's sad, really.

It's also sad that we cannot talk about shari'a without closed reference within the boundaries of the classical schools (ie., for Sunnis: Maliki, Hanbali, etc). This is precisely why the phrase "fossilized Sharia" that someone used above is a very apt and accurate description of the state of Islamic thought today. Our 'ulama and our judges do not fully understand the "Islamic" laws as they were forumlated and practiced over the centuries, nor do they understand the complex social realities of today, which call for nothing less than a revival and a total revamp of Islamic jurisprduence.

koonj said...

I agree with you, Mezba. We often get stuck in labels and slogans, when it's the maqasid/aims of the shariah that should be paramount.

I would NOT take any case of mine to any shariah court that I can imagine taking place today. Not to mullahs stuck in the 15th century.

Anonymous said...

It's too bad the Canadian court made that decision.

What next... do we grant DINK custody of kids because they can argue the parent is too poor, and it's in the "best interest" of the grant them custody?

Canadian courts should be busy ruling on law rather then engaging in social engineering projects.

mezba said...

Sonia: lot of these so-called judges are also ignorant chavinistic bigots.

Frenchita: interesting. What do you make of your experience so far, living there?

Maleeha: I know what you mean, but I think we need to overhaul all the four schools of thought today. There's too much of contextual residence-based 9th century thinking in those schools of thought.

M&M: I don't like both, but the way the judges approached both the verdicts is very different. In one, it was the spirit of the law that was (supposedly) being looked after, in other it was the letter.

Frenchita: This hadith is further clarified by other hadith, as discussed in the book of Abu Hanifah. In Islam a marriage is a legal contract as well, so any sane Muslim person representative of the law can act as a wali (such as Justice of Peace in Western countries). So probably the wali was the government official or some uncle or even the imam of the mosque, or even the groom's father. It doesn't HAVE to be her LEGAL guardian.

Suroor: Sharia law as it is today doesn't appeal to me at all. I would rather live under secular laws than so-called Islamic laws in so-called Muslim countries.

LF: Where have you gone?

As I said, I disagree with both verdicts, but I strongly think the UAE one is bad, both for letter AND spirit of the law-wise, and the judgement is super bad.

Abu Sinan: It IS too much. It is IDIOTIC.

I agree, if I were the father fighting for custody I would sue the mother as well. Though I have no sympathy for him, he was involved in a sexual relationship outside of marriage and therefore has no rights on the man, and the woman no rights on the man.

DisIllusioned Arab: Interesting.

mezba said...

Arafat: The thing is, Sharia today has stopped evolving. And other than thinking about after what distance of travel can we shorten our prayers, we really havn't thought too much about modern day issues. What is the Hanifi thought on genetic cloning? About blood transfusion?

None - because these things weren't around during his time. So why do we not have an overhaul of the four schools of thought?

Koonj: me too.

Anon (3.13): The father would get more justice under Canadian court than Iranian court.

frenchita said...

Mezba, sorry for the delay in commenting, got a lil busy.
My experience (in ksa)? hm... I would say we need some reforms in the shariah.

I will look in to hadeeth you quoted. soon and by tmrw promise!

Ari said...

For those of you who don't like the Canadian case:

Adoption is the forfeiture of paternal rights of one set of parents to another. It is a legal reality created by the court.

The father in this case had no rights since he did not claim the child at birth. I agree, it's not his fault since the mother did not inform him.

The decision to have the child remain with its adoptive parents is probably the best one (I haven't read the case so I don't know) probably due to the fact that they have a marriage, financially secure, and all the other feautures you'd want for a child.

However, there is an on going debate in family law about the rights of unwed fathers and what their position at law should be.

To get back to the post's issue, Sharia law needs to find a modern voice and perhaps move with the times a bit. Law should be a regulation of the realities in a society for its benefit.

Anonymous said...

I think the guy who's child was given up for adoption should have been married to the women. If he had been, he would have had the right to custody of the child.

Since the child was born out of wedlock the women can do what she pleases with said child.

mezba said...

Frenchita and Ari: we do need some reforms in how Islamic law is interpreted AND implemented.

Anon: that's now how it works in this country. There is no illegal children here. Father and mother have an equal right (and responsibility) to the child by default regardless of marital status.