The Ambition [a Canadian young Muslim's Journal] interviewed Barrister and Solicitor Syed Mumtaz Ali, who is the person behind the introduction of Sharia Tribunals in Ontario, which have been named The Muslim Court of Arbitration.
TA=Question from 'The
1. TA: What is the background of your involvement with the Sharia court and how did it come into existence?
BMA: The Qur’an suggests that in the case of a disputation between two Muslims and especially in matrimonial situations, there should be an arbiter appointed from each side. A third impartial one, if needed, could be appointed, and they should resolve their disputes according to Islamic law. In British India, Muslims living under the British rule were able to get Muslim family Law incorporated into the British Laws. The British saw the need and benefit of incorporating the Muslim and Hindu personal law into their judicial system. It became an integral part of the British laws in India and was called The Anglo Muhammadan Law. Hence, Muslims were able to govern their personal life according to Sharia, under the British Rule. I pondered on this precedence, and in 1991 when the Ontario Government introduced the Arbitration Act, I saw a chance to “Canadianise” Muslim Jurisprudence just as we had “Anglicised” it in India.
Muslims in Canada constitute the largest religious minority and there is a need and an opportunity to fill the gap between Muslim personal laws and the Mainstream judicial system.
2. TA: What is arbitration and is it similar to a court of law?
BMA: Arbitration is the process similar to the court proceedings but is more fast paced and tries to eliminate the whole paraphernalia of courts. Parties are allowed to have their representation by the counsel of their choice and the rulings in these courts of independent private arbitrations are binding on both parties and are accepted and on application by any of the two parties can be enforced by the secular court of Ontario. The Arbitration Act allows the disputing parties to apply the ‘rules of law that is designated by the parties.’ This is a broad definition which gives us the chance to apply the Qur’anic framework and solve our disputes within the Canadian laws and the Charter of Rights.
3. TA: What made the arbitration process popular?
BMA: The Civil courts are heavily backlogged and it takes years to get a date for trials. The Canadian system is wonderful, but what good is it if you cannot get justice within a reasonable time? This was the feeling in the legal community and they wanted to have something done about it. The Government of Ontario took a bold step and established a Commission that looked into it and made recommendations that we should have some kind of court-affiliated mediation/arbitration system. Looking at the success of these tribunals, the government has now made it mandatory to go for mediation immediately after, if you file a case in court. But arbitration is an independent process, you do not have to go to court to settle your disputes.
4. TA: Considering the treatment of women at our Masjids [mosques] and centres, women being at the backstage, and having a very nominal role to play in the community, if any, do you think most Imams will be able to do justice?
BMA: Most Imams would not even qualify to become arbitrators, due to a lack of required education and qualifications. It’s not like mediation. This is the private court of law and arbitrators must be qualified. You must be able to handle both Canadian and Islamic laws. This will take time to train those people and we are taking our time to arrange a team of arbitrators.
5. TA: Do you have any women on your team?
BMA: Yes. In fact almost half of our team members are female.
6. TA: Who can be an arbitrator?
BMA: In order to be an arbitrator in Canada, you must have training from the “ADR Institute of Canada” and have knowledge of the Canadian law in the field that you want to work in. They are also required to consult the experts on the subject.
7. TA: For the benefit of our readers, could you define the Sharia?
BMA: By all means. Sharia and Jurisprudence are two different things, but recently, they have been used both by Muslims and non-Muslims alike, as if they were synonymous.
Sharia consists of the Qur’an and the Traditions of the Prophet pbuh. There are only 226 or 228, according to some scholars, verses in the Qur’an that are of a legal nature and a similar number of Traditions that make the basis of our Sharia. It’s like the constitution or first principles or the basic guidelines of Islam. Out of these, only about 70 injunctions relate to family or personal law. Athough we can’t apply all of them in a non-Muslim country, they cannot be modified. For example, The Sharia forbids a person from marrying their mother. You cannot change that, no matter where you are. Every country makes its constitution as rigid as possible, and so the same applies to an Islamic constitution.
Fiqh or Jurisprudence, on the other hand, is very vast. It’s NOT Sharia. in the correct technical sense, and it is written by scholars and qualified jurists in accordance with Sharia laws. These “man-made” laws have to be within the parameters of the “Shariah” and cannot be in conflict with them. It can be changed. You can compare it to by-laws. They are flexible and so reflect the needs of the time by the populace.
8. TA: How much work has been done along these lines? Is the process still up in the air or is it in place?
BMA: We presented our case to incorporate Sharia (Muslim Personal law) in the arbitration process to the Commission and it has been accepted. Since 1991, when the Arbitration Act was passed, I have not had much support from the community, mainly due to lack of understanding of the procedure and publicity, but I got a great deal of support from non-Muslim lawyers, who were in favour of court-appointed Mediation/Arbitration.
9. TA: Do you want to implement the Sharia laws or the Islamic jurisprudence?
BMA: We will use the guidelines of the Sharia and Muslim Personal/Family law, and use it to the extent that is permissible under the Canadian laws. In other words, we want to adapt, adjust, modify, water-down or “Canadianise” the Islamic Jurisprudence to our advantage.
10. TA: I gather that the reason a person would go to arbitration is to avoid the lengthy court procedure and time and to get all the benefits and rights, for instance available for women etc., under the Canadian system. The question is that if we can do that using the Canadian law, what is the need for Sharia law? Why do we want to set up a parallel system?
BMA: Sharia is a part of our life. If we proclaim to be a Muslim, we must live our life according to the injunctions of Allah [God] and His Prophet. Let’s take the example of marriage. You cannot have an Islamic marriage without applying Sharia. Similarly, if there is a fear that a matrimonial dispute is about to occur, the Qur’an clearly states that you must try to solve it by having two arbitrators, one from each side. This is the command that in order to be a Muslim, you must surrender to the command of Allah. If you don’t, then you are not a good Muslim.
11. TA: This Qur’anic injunction is very general and can be fulfilled by going to a Canadian arbitration tribunal. Why do we still need Sharia?
BMA: Let me give you an example. In the case of a divorce that is agreed upon by both Muslim man and woman, Islamically it is accepted and the woman is free to get married after her Iddah [waiting period so as to avoid confusion trgarding paternity if such is the case]. But this divorce is NOT accepted by the Canadian law and would take a long time before she/he is allowed to re-marry because they are not allowed by Canadian law to re-marry without obtaining a Canadian divorce.) In the Islamic tribunal, this case can be taken as Khula [a form of divorce] and can be presented to the court as an uncontested divorce. The ruling can be made in a much shorter time and the parties will be allowed to go on with their new lives. Only a Sharia tribunal can do that.
12. TA: You said earlier that if you are not following Sharia, you are not a good Muslim. Don’t you think that this statement is in itself coercive? Wouldn't this give rise to the potential abuse of women’s rights?
BMA: What would you call a Muslim who does not earn a Halal [lawful] income or eat Halal food when the opportunities are there; or who invests in Haram [prohibited] assets when Halal stocks are available? Sharia is the way to live for a Muslim. But in a case where it’s not available, Allah knows best, but when it is possible to abide by it, you must abide by it. Yet, there is no force upon anyone. Allah says “There is no compulsion in religion. The truth has been separated from falsehood.” So, it’s up to the individual’s conscience how he or she wants to regulate their life. It’s just a matter of choice. There is no penalty or punishment for you in this world but you are answerable to your Maker on the Final Day of Judgment when Allah, in His discretion, may decide to forgive you or to punish you in the life of the Hereafter. To obey or not to obey is a matter of your own conscience.
13. TA: In some other countries where the Sharia has been introduced, we have seen so many injustices done against women in the name of Islam and there is a legitimate concern among the women’s groups that their rights would be tampered with.
BMA: These concerns are unfounded as far as the Canadian land is concerned. Here we have Muslim personal law and it is being applied through the mediation or the Canadian system of arbitration. You will have a win-win situation and the best of both worlds. You are using a Canadian vehicle to reach the destination of the Muslim Sharia. You are having your cake and eating, too. An impossible task, you might say. But that is what you will be accomplishing.
14. TA: Are you saying that the Sharia laws will be customized to be consistent with Canadian laws?
BMA: Of course. Contrary to the popular belief that we are incorporating 100% Sharia, that’s not the case. The bottom line is that we are living as a minority and the way the Sharia law governs us in this situation is stipulated and described in these words by the Prophet (pbuh): “Muslims living as a minority in a non-Muslim land are like Bedouins.” What it means is that; so long as they are wandering around in a Muslim country, 100% of the Sharia applies to them. But if they then wander in a non-Muslim country, then they are permitted to obey and apply only as much of the Sharia, say 80% or 40% or whatever. Muslim's are also obliged to obey the laws of the country they live in.
15. TA: And what interpretation of Sharia will you apply here? ... Nigerian? Afghani ... say of the Taliban? ... Saudi or Pakistani?
BMA: Each of those countries adopts, adjusts, modifies the Sharia provisions (Muslim jurisprudence), which suit the peculiar circumstances of that country. So the interpretation Nigeria considers consistent with their own peculiar circumstances may not be suitable to Afghanistan, under a certain regime, or to Saudi Arabia, Iran or Pakistan. Therefore different countries adopt or interpret it in different ways, and they are all permissible ijtihad [interpretations]. So it is that Canada will interpret Muslim law which suits its own peculiar circumstances. That is why I call it a “Canadianization” process. This is a compromise that we have to make. Some countries are more liberal, others are more conservative. Now, if we happened to live in a more conservative land, we’d have to follow the laws of that land if we lived there. It’s that simple. Canada has liberal laws based upon the Charter of Rights with the guarantee of freedom of religion, among other things.
16. TA: How can you guarantee that women will get equal treatment?
BMA: It’s stated in the Arbitration Act itself that an arbitrator has to be impartial and fair and that any arbitrator with even a shade of bias, can be disqualified. You cannot violate the Charter of Rights which protects religious freedom and guarantees equality in our multicultural society.The decisions must be made on the basis of equity and fairness to both parties.
17. TA: If Canadian laws are to supersede some decisions, then it creates a perception that the Sharia laws are somewhat inferior to the laws of the land. Why would we want to create that perception?
BMA: It’s not a matter of superiority or inferiority; It’s just that the two systems are different. People can have whatever perception they want to have. But for us, it is a non-issue in the context of what we are discussing. We need not think along these lines at all. Those that are interested might consider a more thorough study of the subject. I assure you, you will find no other system of law in the world that provides as much equity and fairness to women as Islam does. Just go to the web site muslimcanada.org. There you will find enough material on this subject.
18. TA: Since you don’t have a team at the moment, are you not ready to take-off yet?
BMA: It has been in place informally. We have dealt with a few cases and awarded a judgement within days.
19. TA: The scope of Sharia is limited to family disputes. Are the matters of divorce, custody and alimony going to be settled in these tribunals?
BMA: Custody is not
in the Arbitration Act. Yes, we will be able to deal with most of
the other issues as long as they abide with Canadian law. Yet both parties
must arrive at a mutually agreed upon compromise or settlement and the
Canadian courts are more likely than not to accept them. This is a concession
given to us by the Sharia itself. If you have made the decision
to live in a non-Muslim country, you’ll have to face the fact that you
cannot apply the Sharia 100%. because It has to be tailored to be
in tune with each country’s laws.