http://www.islaminterfaith.org
The Debate on
Sharia laws in Canada: An Overview
By Mohammed Ayub Ali Khan ([email protected])
In 1991 the province of Ontario in Canada passed the Arbitration
Act. This act allows religious groups to resolve family and
other civil disputes through arbitration. Under this act
disputing parties may make an agreement to have disputes
adjudicated by binding arbitration.
One of the important pre-conditions of this arbitration is that
it has to be voluntarily agreed to by both sides. The choice and
qualifications of the arbitrators are allowed to be set by the
disputing parties. The rulings of the arbitrators have to be
consistent with the Canadian Charter of Rights and Freedoms and
the mainstream judicial system has the powers to intervene if
any of the laws of the land have been violated. The arbitrator’s
decision is final and binding unless found to be in violation of
Canadian law. According to Brendan Crawley, a spokesman for the
Ontario Ministry of the Attorney General, "People can use any
arbitrator they want and can use a religious framework if it is
mutually acceptable. The Charter of Rights is the supreme law of
Canada and the Arbitration Act is subject to it. If the award is
not compatible with Canadian law, then the court will not
enforce it. You can't agree to violate Canadian law."
The permission to set up arbitration boards was seen as a move
to relieve the overburdened justice system. Hassidic Jews,
Catholics and Ismaili Muslim communities have been using the
arbitration option for many years. However, when in October 2003
a group of Muslims calling itself the Islamic Institute of Civil
Justice held a meeting to form an arbitration board all hell
broke loose. When the delegates to the IICJ conference met at
the International Muslims Organizations mosque in Toronto to
discuss the issue, they hardly had an inkling of what was coming
towards them. A reporter from the Law Times was also present at
the conference and she published a detailed report on the
proceedings of the conference and group’s intentions in the
journal. Syed Mumtaz Ali, a retired Canadian lawyer of Indian
origin, is one of the main conveners of the proposed Sharia
arbitration board. He was the first person to educate the
community about this option. In interviews to the media and in
his writings Mumtaz Ali said, "Islamic law obliges Muslims to
follow local law, and Islamic law where possible. Under
Ontario's Arbitration Act, Muslims will be able to settle
disputes in matters of contracts, divorce and inheritance
privately with the help of arbitrators."
He says that Islamic family law would definitely not apply in
child-custody cases: "We cannot use that aspect because Canadian
law is very sensitive to the interests of the child and the
courts must decide custody."
He admitted that the Islamic inheritance and divorce laws tend
to favor men. "Brothers and sons always get more. But it is
because under the Islamic system, the man has the duty and
responsibility to look after the woman," he said. Mumtaz Ali
agreed that the Canadian laws can’t be violated under any
circumstances and that there is no reason to fear the use of
Sharia laws.
But the people opposing Sharia laws remain unconvinced. Woman’s
groups like the Canadian Council of Muslim Women alleged that
the proposed Sharia law board was introduced by stealth and that
women were not consulted in its formation. Alia Hogben,
president of the Canadian Council of Muslim Women, strongly
opposes the arbitration board. "This is a very difficult
position for us to be in because we are believing women," says
Hogben. "But to apply Muslim family law in Canada is not
appropriate."
Hogben further says, "We see this as a women's equality issue.
Women are afraid they will not be `good' Muslims if they don't
go along with it or that they'll be accused of blasphemy. Why,
why is it happening?"
"Is it because the government doesn't want to be seen as
anti-Muslim? But this is anti-women. Why should we be treated
differently from other Canadian women?" she asks.
Another group calling itself International Campaign Against
Sharia Court in Canada has adopted a more aggressive and
anti-Islamic tone. Its coordinator Homa Arjomand, a former
Muslim, believes in the strict separation of church and state.
"Your beliefs should stay in your home, in your mosque, your
church, your temple. We should remain a secular country with no
separate rules for some groups, not when they discriminate
against women."
Arjomand’s and other radical left wing groups have started a
concerted propaganda campaign to attack Islamic and Sharia laws
through the internet, media, pamphlets and public meetings.
Mumtaz Ali thinks that such attacks are totally uncalled for. He
says that the model of Islamic law that will be used in Ontario
will be a “Canadianized Sharia.”
"It will be a watered-down Sharia, not 100 per cent sharia. Only
those provisions that agree with Canadian laws will be used. If
there is a conflict between the two, Canadian law will prevail."
Other Muslim scholars and writers who do not oppose the Sharia
arbitration have their concerns as well. In an article published
in the Law Times, Imam Ahmad Kutty and his son Barrister Faisal
Kutty write: “Compounding the problem is the fact that there is
virtually no formal certification process to designate someone
as being qualified to interpret Islamic law. As it stands today,
anyone can get away with making rulings so long as they have the
appearance of piety and a group of followers. There are numerous
institutions across the country churning out graduates as alims
(scholars), faqihs (jurists) or muftis (Juris-consults) without
fully imparting the subtleties of Islamic jurisprudence. Many
are unfortunately more influenced by cultural worldviews and
clearly take a male centered approach.”
“The status quo in Islamic law characterized far too often with
abuse of women and minorities is the product of rigid
interpretations shaped by tribal and cultural norms. The pure
Islamic teachings of equality, justice and freedom must be
brought to the fore again by using interpretations which are
consistent with the spirit of Islam. Islamic dispute resolution
if it is a simple exercise of grafting the western paradigm onto
the existing Islamic rules will not be fair or just. This formal
ADR initiative provides an opportunity to shed the cultural
baggage and revisit some of the patriarchally misinterpreted
rulings by refocusing on the Quran's emphasis on gender
equality.
”This is a daunting task. One where arbitrators, mediators and
facilitators must be adequately qualified to issue Islamic
rulings consistent with the spirit of the Shariah and within the
parameters of the Canadian Charter.”
Those expending their energy campaigning against this initiative
outright would help their cause more by offering constructive
input to help set parameters and develop a transparent and just
process.”
Such appeals for reason have seem to be fallen on deaf ears and
the anti-Sharia campaign has adopted an even extreme
anti-Islamic and anti-faith stance. It is now calling for a
“complete separation of religion from education for children
under the age 16 (sic).” At its recent public meeting comments
were not only against Islam but also against the Sikh faith for
its requirement of its adherents to carry the kirpan.
As the debate continues, Ontario Attorney General Michael Bryant
and Sandra Pupatello, Minister Responsible for Women’s Issues,
have appointed Marion Boyd to review the arbitration process and
its impact on vulnerable people in Ontario.
Boyd, former Attorney General and Minister Responsible for
Women’s Issues, is expected to deliver her report by September.
The Ministry of the Attorney General and the Ontario Women's
Directorate are already working to ensure that women are aware
of their rights under Canadian law, including in arbitrations,
and that educational materials are available in several
languages.