Archive | Islamic Law in the American Legal System

Islamic Law and Saudi Law in American Courts

From Standard Chartered Bank v. Ahmad Hamad AL Gosaibi and Bros. Co., 2014 WL 96219 (N.Y. trial ct. Jan. 10, 2014):

Defendants assert that they have standing to move to quash the instant subpoenas on the ground that the subpoenas seek all contracts between Pepsi and the defendants, documents which, they claim, include confidential proprietary information about defendants’ bottling operations. In support of their claim defendants submit the affidavit of Eric L. Lewis, Global Legal Coordinator for defendant-judgment debtor Ahmad Hamad A1 Gosaibi & Brothers Company (“AHAB”)….

Defendants contend that compliance with the subpoenas would expose Pepsi to civil and criminal penalties under the laws of Saudi Arabia. In support they offer the unsworn affidavit of AHAB’s Saudi Arabian lawyer, Dr. Eyad Reda, who claims that absent consent of the account holder or royal or agency order, Article 19 of the Saudi Banking Control Law and Shari’ah principles of privacy prohibit disclosure of banking information to any third parties.

In opposition, plaintiff’s expert, Muddassir H. Siddiqui, alleges that Article 19 prohibits such disclosure only by parties who come into possession of banking information during the performance of their duties under the Saudi Banking Control Law. He notes that since Pepsi does not operate as a bank under Saudi Law and is not an agent of the Saudi Arabian Money Authority, Article 19 imposes no restrictions on. Pepsi. Moreover, he contends, Saudi law and Shari’ah law obligate a Saudi debtor to fully disclose its assets to its creditors. Thus, Pepsi’s disclosure pursuant to the subpoenas is consonant with Saudi law.

The Court accepts the opinion of plaintiff’s expert. He supports it with specific citations and a copy of the Banking Control Law. Defendants’ expert fails to specify what “parties” are subject to the requirements of the Saudi Banking Control Law

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Foreigners and Foreign Law in American Courts: A Concrete Example

Why should foreign law ever be applied in American courts?, some people ask. Why should foreigners get the benefit of this law when they come to America? There are many answers to this, but I thought I’d offer a helpful illustration.

The broad point is that, when American courts apply foreign law, they apply it because American law calls for the application of foreign law. It’s not that American courts are somehow using foreign law to trump American law; rather, they are trying to follow American law. But why would American law consider foreign law? Here’s one example.

Say that Mahmoud (age 30) and Wafa (age 16) come on a visit to California, and have sex here. Having sex with an under-18-year-old is generally a crime in California:

Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is [under the age of 18 years].

If Mahmoud raises the defense, “I’m from France and it’s OK to have sex with under-18-year-olds there,” his defense will go nowhere. Likewise if his defense is “I’m from Washington State and it’s OK to have sex with under-18-year-olds there.” Foreign law, and out-of-state law, is in that context irrelevant.

But say Mahmoud raises the defense, “I’m from Pakistan, and Wafa and I were married there.” Then under California law Mahmoud wouldn’t be guilty (since the law refers to sex “with a person who is not the spouse of the perpetrator”), assuming his marriage is valid. Convicting him would be a denial of his rights under California law.

Now as it happens, in California, under-18-year-olds may not marry without a court order (and, generally, parental consent). But California law only says that these items are required to marry, and [...]

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Foreign Child Custody Disputes Involving People Coming from Countries That Apply Islamic Family Law

I blogged about Souratgar v. Fair when the district court decision came down, but now there’s a Second Circuit opinion. Here are the key facts:

The boy at the center of this case, now four-year-old Shayan, was born in Singapore in January 2009 to [Lee Jen Fair] and [Abdollah Naghash] Souratgar, who are both residents of that country. Souratgar is an Iranian national who has owned a business in Singapore since 1989. Lee is a Malaysian national who worked as an airline attendant, saleswoman, and retail manager in Singapore. She converted to Islam, Souratgar’s faith, just prior to their marriage in Singapore in 2007. Shayan is a citizen of Malaysia with Malaysian and Iranian passports….

In April 2011, when Shayan was two, Lee filed an ex parte application in the Singapore High Court for sole custody. She cited concern that Souratgar would take Shayan from the country and cut her off from the boy. On May 16, the Subordinate Court of Singapore issued an ex parte order directing Souratgar to hand over Shayan’s passports and personal documents to Lee and barring Souratgar from removing the child from Singapore without court approval and Lee’s knowledge or consent. Souratgar complied with the order, denied Lee’s charges, and cross-applied for sole custody.

While the custody proceedings were pending in Singapore, Lee moved out of the marital home with Shayan and refused to disclose their whereabouts to Souratgar. He eventually found them in Malaysia, where Lee denied him access to the boy. Souratgar then filed a custody application in the Syariah Court of Malaysia, which granted joint custody to the couple in early July. Thereafter, Lee succeeded in obtaining a dismissal of that order from the Malaysian Syariah Court for lack of jurisdiction.

After Lee and Shayan returned to Singapore, the custody proceedings

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Foreign Child Custody Disputes Involving People Coming from Countries That Apply Islamic Family Law

From Souratgar v. Fair (S.D.N.Y. Dec. 26, 2012):

Petitioner Abdollah Naghash Souratgar, an Iranian citizen, petitions this Court for the return of his son, Shayan, to Singapore. Shayan, who will soon be four years old, was born in Singapore and has Malaysian citizenship. Shayan’s mother, respondent Lee Jen Fair, a Malaysian citizen, left Singapore with Shayan on May 20, 2012 without petitioner’s knowledge or consent and in violation of a Singapore court order prohibiting either parent from taking the child out of Singapore. She traveled to the United States where neither petitioner, respondent, nor the child has any meaningful ties or connections.

The father sued in American court, seeking return of the child to Singapore. The relevant American legal rule is that provided by the Hague Convention treaty, and the federal statute — the International Child Abduction Remedies Act — that implements it:

The Hague Convention seeks to “secure the prompt return of children wrongfully removed to or retained in” signatory states. The United States has ratified the treaty and implemented its terms through ICARA. Singapore acceded to the treaty in May 2012.

Under the Hague Convention, a child’s removal from a signatory state is wrongful when “[ (a) ] it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and [ (b) ] at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” The treaty applies to children under the age of 16….

In order to prevail, petitioner must establish by a preponderance of the evidence … that “(1)

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American Court Enforces United Arab Emirates Divorce, Mahr, and Child Custody Judgment

An interesting case, S.B. v. W.A. (N.Y. trial court Sept. 26, 2012). A quick and oversimplified summary:

1. In 1998, S.B., an American professional woman, married W.A., an Egyptian immigrant who eventually became an architect. They lived until 2006 in America, where their two children were born. They then moved to the United Arab Emirates, where W.A. had gotten a new job.

2. In 2009, S.B. accused W.A. of attacking her, inflicting “severe bruises and a fractured skull.” As a result, W.A. was convicted of assault in the UAE, on the grounds that he had (according to the UAE court) crossed his legal limits to discipline his wife. “The defendant never denied using physical force against the plaintiff, but defended the charges claiming he had the right to use physical means to discipline his wife and that her injuries were not as severe as she claimed.”

The assault formed the grounds for S.B. to divorce W.A., also in the UAE; the UAE divorce court granted S.B. the divorce, awarded her the $250,000 mahr (essentially an amount provided for in the parties’ Islamic premarital agreement in the event of a divorce), ordered W.A. to pay child support and some amount of spousal support, and gave S.B. custody of the children.

3. Both parties then returned to the U.S., and S.B. moved in New York courts for recognition and enforcement of the UAE decree.

4. The short version of what the court generally ruled (setting aside some procedural complexities):

a. The court recognized the UAE divorce.

This seems right to me, given that the UAE was a natural place for the parties to divorce, especially since neither party was planning to move away immediately. (The wife had a banking job in the UAE, and wanted to abide by the terms of [...]

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Court Refuses to Enforce Islamic Premarital Agreement That Promised Wife $677,000 in the Event of Divorce

Soleimani v. Soleimani (Kan. Dist. Ct., Johnson Cty., No. 11CV4668, Aug. 28, 2012) is a very interesting decision on enforcing Muslim premarital agreements in American courts. (For more interesting recent cases on this, see here and here.) The decision is long and detailed, and I can’t do it full justice, but here are some excerpts. First, the facts:

After 30 years of marriage [during all but the first year of which they lived in the U.S.], Faramarz (“Fred”) Soleimani, petitioner, known as a local restauranteur, sought and obtained a divorce from his wife of thirty years, Zohreh Bahmani, on February 19, 2008. Immediately prior to this divorce action, [the husband] had engaged in an internet relationship with respondent Elham Moghadam, an Iranian … woman twenty-four years younger than him. Pursuant to Iranian and Islamic customs, [the husband] undertook to transfer over $116,000 in premarital funds to her, beginning in November of 2006, culminating in an Iranian marriage contract-signing ceremony on July 19, 2009…. [T]he new couple traveled to the United States, following the execution of necessary visas and other related paperwork so that [the wife] could reside here. A Johnson County judge conducted a separate ceremony August 19, 2009.

The new couple seemed very happy and Mr. Soleimani, by all accounts, was devoted to his new wife, and she to him. He even had her name tatooed to his chest.

Less than two years later, he filed for divorce on June 1, 2011…. [There were] allegations of domestic violence, rape, a petition for protection from abuse which [the wife] filed in Case No. 11CV6179, (granted and finalized on February 3, 2012), and a separate action, alleging a marital tort case, alleging assault and battery, and repeating many of the allegations from the abuse case. That matter was dismissed on

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“American Law for American Courts” and Foreign Divorce Decrees

I blogged below about the “American Law for American Courts” proposal, and its possible effect on foreign judgments entered without a civil jury trial. Here, I wanted to flag a possible problem with this proposal and foreign divorce decrees.

American courts routinely have to decide the marital status of people who came to America from a foreign country, and who got married or divorced or remarried in that country. If Wanda purportedly married Xavier in Elbonia, then purportedly divorced him in Elbonia, and then purportedly married Harold in Elbonia, and ten years later comes to America, the American legal system has to be able to figure out whether Wanda is indeed properly married to Harold. That’s the sort of issue that comes up all the time in immigration law, in divorce law, in wills and trusts law, in tax law, in evidence law, and in many other contexts. To figure that out, it may be necessary to decide whether the earlier Elbonian divorce was valid — which can only be figured out using Elbonian law — or possibly just to give legal effect to the earlier Elbonian divorce.

Now what if the Elbonian legal system doesn’t take the same view of various rights, including equality rights, that we now take? What if, for instance, Elbonian law provides husbands more rights than wives in getting divorces started? Or what if Elbonia — like Israel, Lebanon, India, and other places — provides that family law matters are to be adjudicated under the religious laws of the religious group to which the parties belong, which necessarily involves a form of religious discrimination that would violate First Amendment principles if done in the U.S.? Or what if Elbonian rules of evidence give more weight to men’s testimony or to the testimony of people who [...]

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“American Laws for American Courts” and Civil Jury Trials

I’ve blogged quite a bit about why broad bans on the use of foreign law in American courts are improper. But what about narrower limitations, such as the American Laws for American Courts proposal that has been enacted in some form in Arizona, Louisiana, and Tennessee?

I think that particular proposal is less problematic, and some aspects of it might well be sound. For instance, I support laws — such as the recent federal SPEECH Act — that limit domestic enforcement of foreign judgments that are based on speech that would be protected in the U.S. At the same time, it seems to me that there’s one pretty serious potential problem in it.

Briefly, the “American Laws for American Courts” is aimed not at banning all application of foreign law or of religious law — indeed, it might not apply to purely religious law at all, see below — but just to enforcement of foreign judgments or of arbitrations where the decisionmaker

bases its rulings or decisions in in the matter at issue in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

If read to mean that the judgment is unenforceable to the extent it relies on a particular legal rule that “would not grant” American fundamental rights — as opposed to the judgment being unenforceable if it’s based on any legal rule that comes from a legal system in which other rules don’t grant such rights — this is a pretty [...]

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But What If Foreign Law Is Very Bad?

Whenever I blog about why American courts often should consider foreign law — as in the recent Pakistani Law in U.S. Courts thread — some commenters ask: What if the foreign law is very bad? What if it’s sexist, for instance if it treats men and women differently in issuing divorce decrees? What if it requires that the losing party get his hand chopped off? What if it requires American courts to themselves discriminate, for instance by applying a legal rule that discriminates based on the sex or religion of the parties?

These are important and interesting questions, and they are why American courts do not apply a general rule that they will categorically enforce all foreign judgments or apply all foreign laws, whatever their content. American courts refuse to enforce rules that they see as sufficiently against the “public policy” of the state (or of the U.S. generally). But this doesn’t keep American courts from enforcing other judgments and applying other laws. It’s not an all-or-nothing matter — either you apply all foreign laws (e.g., decide whether immigrants are married based on the law of the place they married, and also chop off people’s hands if foreign law calls for that) or apply no foreign laws.

Contract law offers a helpful analogy (though, as always with an analogy, it’s just an analogy, not an identity). If two parties make a deal, American courts will usually enforce that deal. Sometimes they’ll enforce the deal even through “specific performance,” which is to say ordering the parties to go through with the deal and not just giving money damages. (There are limits on specific performance that are unrelated to the public policy exception, but we’ll set them aside there.) Will they enforce a deal that calls for chopping off a hand? No. [...]

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Pakistani Law in U.S. Courts

In past discussions, especially about the Oklahoma foreign law ban and about similar proposals in other states, some people have questioned why American courts would want to look at foreign law. Yesterday’s Naseer v. Moghal (Va. Ct. App. Aug. 14, 2012) offers an excellent example. The facts:

On August 1, 2000, wife [Tahira Naseer] married Nasir Mehmood Khan in Pakistan. On June 12, 2001, Khan told wife three times that he divorced her pursuant to Islamic law. In Pakistan, this is considered the religious component to a divorce. Then, the parties have to obtain a legal divorce. Once the husband pronounces the divorce, he gives notice to the local government, known as the Union Council, and the wife receives a copy. The Union Council gives notices to both parties to try to reconcile. After ninety days, if there is no reconciliation between the parties, the Union Council issues a certificate confirming the divorce. In this case, wife and Khan did not give notice to the Union Council to start the process to receive a legal divorce in Pakistan. Wife assumed she was divorced after Khan said that he divorced her three times.

On January 26, 2003, wife and husband [Hamid Moghal] married in Pakistan, and on July 4, 2004, had a subsequent marriage ceremony in Fairfax County, Virginia. Wife did not tell husband that she had been previously married. She indicated on their marriage certificate that this was her first marriage. Husband and wife separated on November 18, 2009.

On December 3, 2009, husband discovered a marriage certificate from wife’s first marriage. He took the document with him on his trip to Pakistan, where he learned that wife never obtained a legal divorce from Khan. The Pakistani authorities issued an arrest warrant for wife and charged her with bigamy.

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Court Rejects Claim that AIG’s Use of Sharia-Compliant Financing Violates the Establishment Clause

The opinion is Murray v. Geithner (E.D. Mich., decided today). I think the result is quite right, for reasons I mentioned when the lawsuit was first filed, and when the court rejected the government’s motion to dismiss. Here’s my reasoning from the latter of those posts (though it’s not quite the reasoning given by the court):

[T]he [plaintiff's] theory is apparently that the government may not invest in any company that, in part of its operations, provides products that are tailored to a particular religious faith, and that may be accompanied by donations to religious charities. But lots of companies do this, for the simple reason that religious consumers have their religious tastes such as consumers have other ethical or esthetic tastes.

For instance, a food processing company might have a division that produces kosher products and donates some money to Jewish-specific charities (as a way of better wooing Jewish buyers). An investment company might seek to attract conservative Christian investors by offering a fund that doesn’t invest in (say) hospital chains that perform abortions, and by donating some share of its profits to religious causes. Other companies might provide funds that don’t invest in munitions manufacturers, to satisfy the desires of Quaker investors. A store might sell, among other products, religiously significant garments or religious symbols. A bookstore might sell religious books alongside other books.

Under the plaintiff['s] theory, either Islam is subject to special constitutional constraints, or — once that constitutionally forbidden legal rule is rejected — all of these companies would somehow be forbidden as targets of government investments. The government couldn’t bail them out. It presumably couldn’t invest public employee retirement funds in them. It couldn’t sell religious books alongside other books in public university bookstores, or serve kosher food alongside other food [...]

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May American Court Appoint Only Muslim Arbitrators, Pursuant to an Arbitration Agreement?

That’s the issue lurking in In re Aramco Servs. Co., now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramco, the Saudi government’s oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco’s Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslims or Saudi citizens [UPDATE: I originally erroneously said "Muslim Saudi citizens"; I've just corrected it]. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis.

The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn’t reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court — a government entity — from discriminating based on religion this way, even pursuant to a party agreement?

I’m inclined to say that the court indeed may not choose arbitrators based on their religion, even pursuant to the agreement. First, that would be discrimination based on religion by a court; nor can one say that any [...]

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“[A] Muslim Boy [Allegedly] Got a Stiffer Sentence Because of the Fact That [His] Offense [Was Committed] During … Ramadan[]“

In Pucci v. Nineteenth District Court (6th Cir. Dec. 16), plaintiff Julie Pucci was dismissed from her job as deputy court administrator. She alleges that she was dismissed partly in retaliation for her complaining about one judge’s “practice of interjecting his personal religious beliefs into judicial proceedings and the business of the court.” The judge was later appointed chief judge, and dismissed her. Another factor in the dismissal was allegedly Pucci’s living with a different judge, with whom the chief judge had a good deal of friction. And another factor, according to the documents I’ve seen, may have been the chief judge’s moral disapproval of Pucci’s living with the other judge without their being married.

In any case, here is the Sixth Circuit’s summary of the complaints about the judge (though note that I could see no indication of whether any government official had definitively decided whether the Ramadan incident had happened as alleged):

Pucci was not alone in complaining. Sharon Langen, the clerk of the court, also testified that she complained to the [State Court Administrative Officer], and another court employee filed a complaint with the state judicial tenure commission. Foran stated that, during his brief ten-month tenure as chief district judge, he received upwards of fifteen complaints from local attorneys “about Judge Somers interjecting his religious beliefs from the bench or imposing sentences based on religion.” [Citing the district court decision.] The record provides several examples:

Judge Somers used official court stationary on three separate occasions to send official correspondence affixing a quote from a biblical passage[;] … [according to then-Chief Judge Foran's summary of a lawyer complaint,] a “Muslim boy got a stiffer sentence because of the fact that whatever offense he had, it happened during … Ramadan[]”; [o]thers complained that Judge Somers lectured defendants about marijuana,

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“Department of Justice Enforces the Sharia: Sues Illinois School District for Muslim Teacher Hajj”

So reads an Atlas Shrugs headline, discussing this Justice Department press release:

The Justice Department today announced it has filed a lawsuit against Berkeley School District, Berkeley, Ill., alleging that the school district violated Title VII of the Civil Rights Act of 1964 by failing to reasonably accommodate the religious practices of Safoorah Khan, a Muslim teacher at McArthur Middle School.

The government’s complaint, filed in the U.S. District Court for the Northern District of Illinois in Chicago, alleges that Ms. Khan requested an unpaid leave of absence in December 2008 to perform Hajj, a pilgrimage required by her religion. According to the complaint, Berkeley School District denied Ms. Khan’s request because the purpose of her leave was not related to her professional duties nor was it leave for any of the specific purposes set forth in the Professional Negotiations Agreement between the district and the teachers’ union. The United States further alleges that, because Berkeley School District denied her a religious accommodation, the district compelled Ms. Khan to choose between her job and her religious beliefs, and thus forced her discharge.

The lawsuit is based on a charge of discrimination filed by Ms. Khan with the Chicago District Office of the Equal Employment Opportunity Commission (EEOC)…. In the lawsuit, the United States seeks an order requiring Berkeley School District to adopt a policy designed to reasonably accommodate the religious observances, practices and beliefs of employees and prospective employees. In addition, the United States seeks back pay, compensatory damages and reinstatement for Ms. Khan….

This is the first lawsuit brought by the Department of Justice as a result of a pilot project designed to ensure vigorous enforcement of Title VII against state and local governmental employers by enhancing cooperation between the EEOC and the Civil Rights Division.

Some [...]

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“Should Western Democracies Build Barriers to Sharia Law?”

That’s the title of a Western Word Radio online radio program, which will be streaming live from 1:30 to 3:30 pm Eastern tomorrow (Sunday, December 12), and will available on the site after that. The details are available here, but the short summary is that the panel seems to be large and quite balanced:

Eugene Volokh (UCLA Law School); Kent [Greenawalt] (Columbia University) : Michael Helfand (Pepperdine University); David Yerushalmi (Center for Security Policy); Marion Boyd (former Attorney General Ontario, Canada); Douglas Murray ( Center for Social Cohesion, U.K.); Robin Shepherd ( Henry Jackson Society, U.K.); Christine Brim (Center for Security Policy, Washington D.C.); Lewis Moore, (Oklahoma State Assembly), Robert Spencer (Jihad Watch ) Anne Elisabeth Moutet (Jean Jacques Rousseau Institute, France), Patrick Sookhdeo, and Shaykh Faiz-ul-Aqtab Siddiqi

I much look forward to participating, and to hearing what my fellow panelists — left, right, and otherwise — have to say. [...]

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