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Western Courts Bend to Islamic Practices

Courts that yield to Islamic norms encourage Islamists and cast doubt on the future of equal rights and responsibilities under the law.

by
David J. Rusin

Bio

September 28, 2012 - 12:05 am
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Judges’ consideration of Shari‘a when deciding cases may be the most alarming avenue by which Islam influences Western legal systems, but it is not the only one. With increasing regularity, Islamic practices sway the administration of courtrooms, affecting when sessions are held, who must rise, and what attire is permissible. This trend should not be overlooked. Courts that yield to Islamic norms, even in mundane matters, encourage Islamists and cast doubt on the future of equal rights and responsibilities under the law.

Ramadan. The Islamic month of fasting can require significant shuffling of schedules by devout Muslims, but are secular courts obligated to alter theirs? Some answer in the affirmative.

Muslim convert Mark Edward Wetsch is one recent beneficiary. Charged with robbing 13 Minnesota banks, he objected to a hearing set for July 20, 2012, the first day of Ramadan, and asked that it be pushed back for a month. Though Judge Jeanne Graham initially declined the request, he persisted. Ramadan means “not engaging in conflict and argument,” but rather taking part in “work to reconcile differences and seek peace,” according to a motion filed on his behalf. “Clearly, a contested hearing in which the government is making allegations against Mr. Wetsch and he is fighting against [them] causes him to engage in conflict and argument.” Graham relented and issued the desired continuance.

The U.S. military court that will try five al-Qaeda terrorists accused of involvement in the 9/11 attacks bent to similar sensitivities this year. After turning their May 5 arraignment into a circus, the jihadists sought to postpone a hearing scheduled for the week of August 8, near the end of Ramadan. James Connell III, a government-compensated defense attorney, stressed in a filing that “the last 10 days of Ramadan commemorate the night God — Allah — revealed the Holy Quran to the Prophet Mohammed.” Hence, “these 10 days are the most holy period of the Muslim calendar and are typically observed by fasting, prayer, and seclusion.” Despite having previously ruled out Ramadan-related extensions, the judge, Colonel James Pohl, agreed to a delay. Connell was relieved: “It’s very difficult to pay attention to sometimes intricate legal proceedings when you haven’t had any sleep and you haven’t had any food.” (In one bright spot, Pohl rebuffed a petition not to hold hearings on Fridays, the day of communal Islamic prayers.)

Such Ramadan accommodations are not new. Four years ago, a French judge postponed a trial after a lawyer complained that “his client, a Muslim, would have been fasting for two weeks and thus, he said, be in no position to defend himself properly,” in the words of the BBC. “He would be physically weakened and too tired to follow the arguments as he should.” (Note that Muslims have played professional football during Ramadan fasts, so it is not obvious that ordinary Muslims are incapable of sitting in a courtroom.) A prosecutor denied that Ramadan had anything to do with the change, but others believed it to be the sole viable explanation. Fadela Amara, a Muslim then serving as urban affairs minister, decried the “knife wound” to France’s separation of religion and state.

Of course, scheduling controversies are not exclusive to Islam. In 2011, the Maryland Court of Appeals ruled that a lower court had “abused its discretion” by rejecting an Orthodox Jewish plaintiff’s motion to suspend a malpractice trial for two days due to Shavuot, during which his faith would preclude him from working or having work done for him. However, the decision stands out because many other U.S. federal and state courts have found no abuse of discretion by judges who did not grant similar Jewish holiday requests. If a continuance of one or two days is not automatic, then certainly the bar should be that much higher for a month-long Ramadan break — especially when its religious necessity is far less concrete than the work proscriptions characterizing strictly observed Jewish holidays.

Rising for judges. Standing when a judge enters and leaves the courtroom is a centuries-old tradition conveying respect for authority and maintaining order. Those who fail to rise may be cited for contempt, but some Muslims are challenging this point of protocol.

The most important U.S. case has centered on Amina Farah Ali, a citizen and Minnesota resident who, along with a second woman, faced federal charges of funding a Somali terrorist organization; both were convicted last autumn. After Ali did not stand at a pretrial hearing, Judge Michael Davis warned that all must do so. Unlike other Muslims present, she refused again and again for the first two days of the trial, prompting Davis to issue 20 contempt citations carrying jail time. The defendant said that because Islam’s prophet had told his followers that they did not need to honor him in that way, it would be wrong of her to stand for anyone but Allah. An appeals court threw out 19 of the citations in June, determining that an ultimatum to rise “substantially burdens the free exercise of religion” for her. It instructed Davis to consider her rights under the Religious Freedom Restoration Act, which declares that religious exercise can be curbed only if the government has a compelling reason. On September 18, Davis reinstated contempt charges but then quickly “purged” them, dropping the penalties. While there are precedents for religious exemptions from the standing requirement, involving Quakers in particular, Ali’s case opens the door for a very different group: American Islamists eager to thumb their noses at the secular legal system. Expect more such incidents in the U.S.

Comparable conflicts have erupted elsewhere. Several radicals later found guilty of shouting hatred at British troops during a 2009 homecoming parade would not rise at their trial, because “in Muslim countries it is a grave and cardinal sin to show respect in this way to anyone other than God himself.” Although the UK is not a Muslim country — at least not yet — the judge caved, acceding to a compromise whereby they could enter the courtroom after she did. Accused terrorists are not big fans of the standing requirement either, as seen in 2007 at the outset of proceedings against nine men from Sydney, Australia, charged with plotting attacks. According to one account, the judge “was not concerned by the refusal but suggested it might not be a wise course of action when the trial started,” for jurors could take a harsher view. The jihadists got their comeuppance regardless: all eventually pleaded guilty or were convicted.

The issue has extended to lawyers as well. Mohammed Enait, a fundamentalist attorney in the Netherlands, initiated a long dispute over his resolve to stay seated on the grounds that all are equal before Allah. Mixed messages ensued. A court in 2008 approved an exception for Enait, but it was reversed. Meanwhile, the bar association reprimanded him, but an appeals tribunal voided it, referencing his “sincere and authentic religious convictions.”

Clothing. Common sense dictates that face veils (niqabs) should not be welcome in a court of law, where security is critical, participants must be identified, and some judges and lawyers use facial expressions to analyze the veracity of statements. Yet none of this has slowed the push for concessions.

The good news is that most witnesses wanting to wear niqabs are turned down, as demonstrated by examples from Australia, New Zealand, Spain, the United Kingdom, and the United States. However, the temporarily uncovered women often are allowed to testify with backs to the audience or from behind screens — an accommodation in and of itself. Also of relevance, judges have been known to expel women in niqabs from public seating areas, with recent ejections in France, where face-concealing attire is now broadly restricted, and Sweden, where safety concerns were voiced at a hearing related to a plot to kill cartoonist Lars Vilks.

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