Wake Up and Smell The Koran

On Thursday, May 8, 2008, on page B2 of the Washington Post, an article "Islamic Divorce Ruled Not Valid in Maryland," said:

After his wife of more than two decades filed for divorce in Montgomery County Circuit Court, Irfan Aleem responded in writing in 2003, but not just in court.  Aleem went to the Pakistani Embassy in the District, where he executed a written document that asserted he was divorcing Farah Aleem.  He performed "talaq," exercising a provision of Islamic religious and Pakistani secular law that allows husbands to divorce their wives by saying "I divorce thee" three times.  In Muslim countries, man have used talaq to leave their wives for centuries.  But they can't use it Maryland, the state's highest court decided this week.

The article said that Irfan Aleem, who recently retired from the World Bank with an annual pension of $90,000, is worth about $2 million.  When he went to the Pakistani embassy in 2003 to divorce his wife under talaq, the sum of $2,500 was mentioned as a "full and final" settlement.  In accordance with Pakistani law and custom, that amount had been written into their marriage contract when they married in 1980.

In a unanimous decision, the Maryland court awarded Mrs. Aleem half the value of their home and half the value of her husband's pension as required by Maryland law.  The Maryland court said that talaq is contrary to Maryland's constitutional provisions which provide equal rights to men and women.

Talaq is indeed contrary to Maryland's constitution, but so what?  The court blithely ignored the facts of the situation:

• The Aleems were not married in Maryland under Maryland law, they were married in Pakistan under Pakistani law.  Both Aleems were citizens of Pakistan at the time of their marriage, throughout their marriage, and at the time she filed for divorce.
• At the time he divorced his wife, Mr. Aleem was not a resident alien who was subject to US law, he was a diplomat who had been accredited to the US government while working as an employee of the World Bank.
• Diplomats have "diplomatic immunity" which means that they are immune from US law and are subject only to the laws of their accrediting country.
• The Pakistani embassy is not US territory; an embassy is part of the sovereign territory of its native country.  US courts have no jurisdiction over what happens in an embassy.  A diplomat can commit murder in an embassy (which has happened many times, particularly during the Cold War) and all the host country can do is to declare the culprit persona non grata and return him to his own country.
• Mr. Aleem did not divorce his wife in the US under US law, he divorced her in the Pakistani embassy which is part of the sovereign territory of Pakistan.  He divorced her under Pakistani law in Pakistan.

Diplomatic immunity operates under a treaty which was signed in 1961, but the idea is far older.  Having been ratified by the US Senate, the treaty has the same force as any provision of the US Constitution.  Many people are confused about diplomatic immunity, including the entire Maryland Court of Appeals:

As one article put it: "So why do we agree to a system in which we're dependent on a foreign country's whim before we can prosecute a criminal inside our own borders? The practical answer is: because we depend on other countries to honor our own diplomats' immunity just as scrupulously as we honor theirs."

The Post quoted Mr. Aryar, Mr. Aleem's attorney, as saying:

"We're very disappointed with the decision.  We think that could have adverse ramifications for a whole bunch of people who reside in the D.C. area under diplomatic visas and assume that their family law rights and obligations are governed by the laws of their country of citizenship."

Mr. Aryar raises an excellent point; people who reside anywhere in the US under diplomatic visas are governed by the laws of their country of citizenship, not by US law.  Not only that, Mrs. Aleem, a Pakistani citizen, voluntarily signed a marriage contract under Pakistani law when she married.  Maryland courts would uphold a prenuptial agreement signed voluntarily in another state; why are they unwilling to uphold a prenuptial agreement signed voluntarily in Pakistan just because they disapprove of Pakistani divorce law?

Mr. Aleem was a diplomat who was never subject to US Federal or State law.  When his wife filed for a divorce under Maryland law, Mr. Aleem went to Pakistani territory and, as a diplomat subject only to Pakistani law, obtained a divorce on Pakistani territory according to the provisions of Pakistani law based in part on a pre-existing marriage contract that had been signed under Pakistani law.  The treaty which defines Mr. Aleem's diplomatic immunity has the same force as any provision of the US Constitution; Maryland courts have no jurisdiction over his divorce.

The Maryland court is out to lunch, just like the judges who ruled that the New York Port Authority was 68% responsible for their garage being bombed in 1993.

The Maryland court claims jurisdiction over a marriage and divorce which occurred in another country because Mrs. Aleem lives in Maryland.  Would an American diplomat who was living in Pakistan be permitted to divorce his wife by filing talaq papers in Pakistan on the basis of living in Pakistan at the time?  Or would being a US diplomat accredited to Pakistan make him immune from Pakistani law and subject him to US law instead?

Maybe we should ask this question a different way: if the American diplomat's American wife were to have an affair while in Pakistan and the Pakistani police found out about it, would we consider it acceptable for them to arrest, prosecute, and sentence her under Pakistani law?  Islamic Sharia law treats a wife's adultery somewhat differently from American law.

By treaty, diplomats accredited to the US are exempt from US law, including income tax.  Let's ignore the fact that there's no plausible reason for World Bank employees to be given diplomatic privileges of this sort, and recognize the fact that Mr. Aleem was an accredited diplomat under valid treaties and sundry international agreements.  How can any US court claim jurisdiction over anything he does?

This case opens a can of worms with respect to which laws to apply under various circumstances.  Jurisdictional confusion makes money for lawyers, of course, which is as good a reason as any for courts to muddy the waters.

Smell the Koran

Regardless of its spurious legal reasoning, one would hope that this case would alert American women to some of the peculiarities of Islamic law, particularly the dangers of applying Islamic law in America.

The Milwaukee Mullahs have persuaded American licensing authorities to permit Muslim taxi drivers to refuse to carry passengers whom they think violate Islamic law.

Muslim immigrants in Canada have persuaded the Canadian government to let them apply Sharia law in parts of Canada where there are enough Muslims.

The Archbishop of Canterbury has said that the adoption of sharia law in England is "unavoidable."

Considering how women are treated under Islamic law, this should strike fear in the hearts of any ladies who do not yearn to live under the strictures of the 7th century.

The Maryland court is absolutely correct that Islamic law has no force anywhere in the United States and we all should strive to ensure that it never does.  The problem is that diplomats and embassies are not subject to our laws in the first place.  It's a good thing they aren't, or our diplomats would be subject to their laws.

By ignoring properly-ratified treaties which have the same force as the US Constitution and following their feelings instead of the law - in this case, their right and understandable, but no less wrongheaded feelings - these judges are simply making the underlying problem worse.