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.
Read the rest of this story on:  Gates of Vienna