Bill would ban courts from using 'foreign law'

Staff WriterApril 28, 2011 

  • Shariah literally means "path to a source of water," a path that leads to God and God's infinite mercy and compassion.

    In its Islamic context, Shariah is a theoretical Islamic system of ethical, spiritual and legal teachings. It is a set of moral values, a moral code and a set of sensibilities that Muslims have developed over the centuries. Shariah is the name of the theological logic of the Muslim canon as a whole. It has always been an abstract concept and so has kept evolving as Muslim communities and their realities changed over time.

    There is no single monolithic Shariah concept. On any given situation, Muslim theologians and jurists always disagreed and came up with an array of differing interpretations and rulings.

    About two-thirds of Shariah deals with the personal devotional and ritualistic life (Ibadat) of the believers. It informs regular worship life, advises Muslims to remember God often, and provides suggestions as to how to do that: How to give charity, how to do your pilgrimage, and so forth.

    It is also true that certain aspects of Shariah involve a judicial, political and governmental system. This part defines certain criminal acts and suggests punishments for them, but this involves only a small percentage of Shariah literature, and these rulings have evolved and changed over time.

    Most of the Shariah is not codified, and it always has been based on the interpretations of judges and scholars.

    Shariah does not require one particular form of government or judicial system.

    Abdullah T. Antepli, Muslim Chaplain, Duke University

— A group of Republican legislators is backing a measure that would make it illegal for judges to consider "foreign law" when making rulings in North Carolina's courts.

Though the federal and state constitutions already guarantee the supremacy of U.S. law in domestic cases, primary sponsor Rep. George Cleveland said he is concerned that Shariah law could gain a foothold in American communities with sizable Muslim populations.

House Bill 640 makes no mention of the Islamic legal code. But Cleveland said Shariah would be defined as a "foreign law" under his bill, and therefore banned from North Carolina's courtrooms if the legislation he proposes is approved.

"It's to ensure that any individual in this state does not have to worry about being taken advantage of by foreign laws," said Cleveland, a retired Marine who lives in Jacksonville. "It's barring any international law. If Shariah law tries to be enforced in the state, yeah, it would do it."

Uncertain of effect

Critics of the bill said that the broadly worded legislation could have unintended consequences, such as impeding international businesses or invalidating overseas marriages or adoptions.

Rooted in the teachings of the Quran, Shariah governs the conduct of an observant Muslim's life, from when to pray to how animals should be slaughtered for meat. It is also the basis for the legal codes in some Middle Eastern and south Asian countries.

Asked to provide real-world examples of the scenario his bill seeks to remedy -- cases where foreign laws infringed on the constitutional rights of American citizens in U.S. courts -- Cleveland said he did not know of any.

The bill's other primary sponsor, Rep. Ric Killian, a Charlotte Republican and a real estate developer, could not be reached for comment.

Rep. Joe Hackney, the House Democratic leader, said Republicans are wasting time attacking an issue that doesn't exist.

"I think it's a solution in search of a problem," said Hackney, a lawyer from Chapel Hill. The bill moved through a judiciary committee last week over the objections of Democrats, taking it a step closer to a vote on the floor of the Republican-controlled House.

"It was very odd," said Rep. Jennifer Weiss, a Cary Democrat and lawyer who serves on the committee. "There were no examples given for why it was needed, when it would be needed, no examples of North Carolina being in a situation where we needed this legislation. It was just sort of rushed through without a whole lot of explanation."

Promoted by TV pundits

Allegations that Muslims are plotting to make the United States part of an "Islamic caliphate," or empire, through implementing Shariah law is a staple for such conservative commentators as Glenn Beck and Sean Hannity. On his show Monday night, Hannity got in a heated debate with Republican presidential candidate Ron Paul after the Texas congressman said efforts to ban Shariah are an affront to religious liberty.

Abdullah T. Antepli, the Muslim chaplain for Duke University, said laws like the one proposed in North Carolina are the result of hysteria and Islamophobia.

"This is part of a much larger scare campaign," Antepli said. "It's un-American, as if Muslims haven't been part of the American story from Day One. The Republicans and the tea party people who have been introducing this legislation across the country are perpetuating ignorance by casting suspicion on Islam and Muslims."

Over the past year, Republican legislators have passed or introduced legislation aimed at banning Shariah or "foreign laws" in at least 17 states, including Tennessee and South Carolina.

In Oklahoma, voters approved a ballot referendum in November that barred "state courts from considering international or Islamic law when deciding cases." But that measure was quickly blocked by a federal judge who ruled that the Shariah ban violated constitutional protections of religious freedom because it unfairly singled out Muslims.

The language of the North Carolina bill referencing "foreign laws," but not specifically naming Shariah, could avoid a similar challenge.

Jeanette Doran, senior staff attorney at the conservative N.C. Institute for Constitutional Law, said some of the bill's provisions appear aimed at addressing a Florida case earlier this year where a judge ruled against the leaders of a Tampa mosque in a dispute with four former trustees.

The Florida judge, an appointee of former Republican Gov. Jeb Bush, ruled the mosque was bound by an agreement that any disputes be settled through arbitration with an Islamic scholar adhering to the teachings of the Quran. The decision was widely flogged by conservative bloggers.

"I don't see a flood of these cases, but there is a real concern among many citizens that a situation like the one in Florida could arise here," Doran said. "This bill would clarify that our state and federal constitutions are supreme, always. It is a prophylactic measure more than anything else."

A problem for business

However, Hackney said the bill could have unintended consequences, such as making it difficult for multinational corporations who do business in North Carolina.

Mark Weisburd, a professor at the UNC School of Law who teaches international law, agreed that the law as drafted would offer little additional legal protections to U.S. citizens while potentially causing big headaches for businesses.

"Say a North Carolina firm wanted to do business with a British firm and for whatever reason they agreed that any litigation should occur in the United Kingdom," Weisburd explained. "The North Carolina firm could later seek to void the contract by saying they wouldn't get a jury trial in a civil case in the U.K. That would make the British firm, if they had any sense, reluctant to contract with the North Carolina firm in the first place."

Religious codes, too

There are also routinely instances in family court where state judges weigh foreign laws when making decisions, such as when a marriage, divorce or adoption might have occurred in a foreign country. Religious codes also sometimes find their way into the courtroom, such as domestic cases involving marriage and divorce with Orthodox Jews, Weisburd said.

"I can see all sorts of ways this might have unexpected consequences," he said.

Gene Nichol, a UNC professor who teaches constitutional law, called the bill "an embarrassment." "It's remarkable to me that any sentient being could think that the imposition of Shariah law is the largest issue facing the people of North Carolina."

Of the six House Republicans listed as either a primary sponsor or sponsors of the legislation, none has a law degree.

The chamber's highest-ranking Republican lawyer, Majority Leader Paul "Skip" Stam of Apex, acknowledged Wednesday that some "legal issues need to be explored" as to the potential effects of the legislation as proposed.

Muslims make up less than 1 percent of North Carolina's population, according to a recent government survey. Antepli, the Duke chaplain, said he counsels Muslim students to become engaged in civic and public life to help combat negative stereotypes about their beliefs.

"I tell my Muslim students to love their flag, love their country and to serve their country," he said. "And one of the best ways to serve their country is to run for office."

michael.biesecker@newsobserver.com or 919-829-4698

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