Some Canadians may use Sharia law
Friday 26 December 2003
Some Canadian Muslims will soon be able to use an Islamic tribunal to arbitrate civil disputes, bringing Muslim Sharia law to a largely secular society.Canada's Islamic Institute of Civil Justice plans to begin arbitrating family and business disputes early next year using Muslim personal law in Ontario.
Eventually, operations will be expanded across Canada.
Since arbitrators' rulings can be enforced by the courts, the development has raised eyebrows that Sharia will in effect be endorsed by Canada's secular courts.
While Muslim leaders insist decisions are binding only if all parties agreed to the arbitration, critics say people may be pressured to take part in the process.
"It involves inheritance, divorces and family matters and the Sharia law is a distinct disadvantage to Muslim women and they will be pressured. There's no doubt about this," said Sheila Ayala of the Humanist Association of Canada which advocates separating church and state.
The new plan, however, would not cover criminal offences.
Critics say the tribunal could decree unequal inheritance settlements for women because Shariah states that a son inherits twice as much as a daughter.
Muslim and non-Muslim experts say concerns are overblown. To complain about Sharia hints at racism against a community that feels under siege after the September 11, 2001 attacks on the United States, lawyers said.
"It is being sensationalised. It is part of the general hysteria that's out there since 9/11, the Talibanization of (North) America," said Irfan Syed, chair of the Toronto-based Muslim Lawyers Association.
"In truly multicultural countries, this is quite common. It's a legitimate way to give religious communities some autonomy within the scope of our law. The two can exist because the Canadian courts have an ultimate supervisory capacity"
Ed Morgan, Law professor "The mechanisms are all there for oversight and it is unfortunate that people are...leaping to conclusions."
Rahim Khan, co-founder of the institute, also dismisses concerns but insisted that the word "civil" be inserted into the original name, Institute of Islamic Justice.
"There should be no concern. We're dealing with Canadian civil law with minor exceptions here and there," Khan said.
"Muslim personal law is accepted all over the world. Canada is a bit peculiar; we don't seem to understand it."
Khan said the organisation will help ease the backlog in the civil courts and would not deal with criminal matters.
The sudden public interest - news of the group's plans has made headlines in Canada - has surprised some Muslims who say they already used Sharia in divorce arbitration and other disputes. The institute, which has about 50 members, said it wants to formalise that process.
Ontario and other Canadian provinces have long allowed the use of arbitrators in civil disputes, whether religious or not.
A similar system of dispute resolution already exists in the Jewish community where a couple who obtain a divorce from a rabbi can have it recognised by the courts. Other religious matters can be taken before rabbinical courts.
The Sharia law is a distinct disadvantage to Muslim women and they will be pressured. There's no doubt about this"
Sheila Ayala, Humanist Association of Canada, says "In truly multicultural countries, this is quite common," said Ed Morgan, a law professor at the University of Toronto. "It's a legitimate way to give religious communities some autonomy within the scope of our law. The two can exist because the Canadian courts have an ultimate supervisory capacity."
The federal government has said it "had no position" on the issue as provinces set laws on property and civil rights in their own jurisdictions as long as they do not breach the Charter of Rights and Freedoms, the country's supreme law.
But that is not enough for critics, who oppose having Canadian courts and police, effectively, enforcing Sharia.
"Nobody thinks the extreme sections of the Sharia law will be carried out, like stoning people and cutting off hands," said the Humanist Association's Ayala. "But still, if Canada accepts this, it means it will give credibility to the sharia law around the world."
New Islamic Institute
set up for civil cases
[The Toronto Star Dec. 12, 2003]
An informal arbitration system that has been quietly settling marital or business disputes in Ontario using Islamic law, or sharia, for several years has now become a more formal structure known as the Islamic Institute of Civil Justice — and a national Muslim women's organization is "gravely concerned" that women's rights will not be protected.
Supporters of judicial tribunals say they reduce the need to go to court, are more private, speed up resolution and keep costs low in civil disputes.
Under the system, arbitrators will be better trained in both Canadian law and sharia, said retired lawyer Syed Mumtaz Ali, who is leading the organization of the new institute.
As Canada's Muslim population, which has climbed to 600,000, continues to grow, the need for out-of-court dispute resolution has also grown, he said. It's not new in Canada and similar to Jewish religious courts, overseen by rabbis, and justice services for aboriginal peoples.
"It offers not only a variety of choices, but shows the real spirit of our multicultural society," said Ali, who when he was called to the bar in 1962 asked to be sworn in using a Qur'an.
Muslims who choose to use the tribunals can ask the arbitrator, who could be a local imam, scholar or lawyer, to use either sharia or Canadian law to settle their differences.
The arbitrators would have the benefit of understanding the disputing couple's language and cultural background. Some women have been working as mediators out of a Toronto mosque for several years, Ali said.
The arbitrator's ruling is binding, provided both parties have agreed to the process and as long the rulings fall within Canadian law. According to Ontario's Arbitration Act, an arbitrator's ruling is not enforceable by a court of law unless it supports the principles of fairness and equality.
But Alia Hogben, president of the Canadian Council of Muslim Women, expressed reservations about the arbitration committees.
"Who will represent the rights of women?" she asked from Kingston.
"We are gravely concerned because there are lots questions and we don't understand from the Canadian Muslim women's point why another system is being applied."
Since most Muslim women in Canada are religious, many may be persuaded to go to arbitration as part of their Islamic faith and identity, she said.
Sharia law is vast and complex, and varies in its interpretation from country to country.
"Muslim law is not monolithic or simple or applied consistently so how will it be applied here in Canada and why is it needed here, when the law of the land tries to be fair and just," Hogben said.
Islamic law in civil disputes raises questions
Judicial tribunal based on sharia to decide disagreements among Ontario Muslims
By MARINA JIMENEZ
[The Globe and Mail Dec. 11, 2003]
A group of Canadian Muslims has established a judicial tribunal that will implement the use of sharia, or Islamic law, in Ontario to resolve marital disagreements and other civil disputes, and make decisions.
Under Ontario law, the courts must uphold the agreements as long as they are voluntary and negotiated through an arbitrator. The courts will not uphold the agreements if they violate Canada's Charter of Rights and Freedoms.
While some Muslims welcome the initiative as a less costly, private and more expedient way to address civil disputes, others wonder how sharia, a body of law based on religious principles, will be interpreted in Ontario and whether it is inherently biased in favour of men.
For example, Islamic family law dictates that male heirs receive a greater share of an inheritance than female heirs; that husbands, not wives, may initiate divorce proceedings; and that in divorce cases, fathers are generally awarded custody of daughters who have reached the age of puberty.
Tarek Fatah, with the Muslim Canadian Congress, applauds the Islamic judicial initiative in theory -- but wonders whether it would cause more divisiveness in the community. "Which interpretation of Islamic family law will be used? In a society like Canada, equality is based on common law," he said. "I also worry that this idea will become the whipping post for all right-wing bigots. A community that is already feeling bewildered will face another set of criticisms."
However, Syed Mumtaz Ali, a retired Muslim lawyer who spearheaded the initiative, believes it will serve Muslims well and save them time and money. The newly formed Islamic Institute of Civil Justice will appoint and train arbitrators -- imams and religious scholars -- to resolve civil disputes. If one party reneges on the agreement, the other party can take it to court to be enforced. The province's arbitration act requires the courts to uphold agreements negotiated through an arbitrator, although not if they are "unreasonable" or in violation of the Charter.
Mr. Mumtaz Ali, who hopes some of the arbitrators will be women, said Muslims are obliged to follow sharia, but are also required to obey the laws of the country in which they live. "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 said.
Mr. Mumtaz Ali said 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 also acknowledged that inheritance and divorce rulings under Islamic law tend to favour men, for historical reasons. "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.
Women may use the tribunal to negotiate prenuptial agreements that allow them to initiate divorce proceedings without the permission of their husbands: "They are in the driver's seat before they marry," Mr. Mumtaz Ali said.
Some Muslims have already been using arbitrators to reach agreements under sharia. The new tribunal will formalize the process.
Interpretation of sharia varies widely even among Muslim nations, ranging from the literal interpretation in Nigeria that stoning is a punishment for adultery to debates in India about the application of Muslim family law. Some critics in India believe that Muslims should be subject to the same laws as are Hindus, while others charge that Muslim family law discriminates against women.
Mr. Mumdaz Ali said the Islamic Institute of Civil Justice has about 50 members, including at least 10 women. "We will incorporate and then the members will decide how to regulate the conduct and appointment of the arbitrators and what their training should be. The arbitrators should be people well-versed in Islamic law as well as Canadian law."
He hopes the institute will also operate other ventures, including shelters for abused women and men, mental-health clinics, libraries and other resource centres.
Under Ontario's Arbitration Act,
people enter into arbitration voluntarily, noted 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,"
he said. "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
The Ottawa Citizen
November 28, 2003
Muslim leaders elected a 30-member council in October to establish a judicial tribunal to be known as the Islamic Institute of Civil Justice. It will establish committees across the country to arbitrate in marital breakups and other civil or business disputes, and then submit the agreements under sharia law to secular courts for ratification.Canadian Muslims have taken a giant step toward persuading Canadian courts to ratify decisions made under Islam's sharia law.
"Many judges prefer this," said Mohamed Elmasry, president of the Canadian Islamic Congress.
"If Canadian Muslims have an impartial body they trust, it will ease the backlog in the courts. If a husband and wife go back to the community, maybe some mediation will solve the problem."
Mr. Elmasry said such committees could also handle disputes between Islamic centres and imams.
"This is very common, and we suffer a great deal when this happens, and it is too expensive.
"Some court cases I am familiar with cost more than a quarter of a million dollars."
He said local arbitration committees will be made up of imams, community elders, practising lawyers and, hopefully, women elders.
"If women perceive this as a men's club, it will not be successful," said Mr. Elmasry.
What makes it possible for Muslim committees to get Canadian legal recognition of settlements according to sharia law is the recent changes in provincial arbitration acts, which make it possible for Muslim committees to enforce settlements.
Syed Mumtaz Ali, a pioneering Canadian Muslim lawyer, told the Canadian Law Times that until now Canadian Muslims were excused from following sharia law because it was impractical.
"But the concession given by sharia is no longer available to us because the impracticality has been removed."
"Thirty years ago, Canadian courts said nobody could usurp their jurisdiction, but now the trend is to go the other way, because the litigation process is too expensive," said Don Short, a Toronto lawyer who specializes in arbitration and mediation.
Under the Ontario Arbitration Act, the courts intervene in arbitrated settlements only to enforce awards, and in such cases as unfair treatment of partners in the settlement.
Jamal Badawi, the spiritual leader of the Islamic Association of the Maritime provinces, said Muslims in the U.S. and Britain already have similar juristic councils that render decisions which are routinely upheld by the courts.
However, Sheila Ayala, a spokeswoman for the Humanist Association of Canada, said there is a danger in Canadian courts upholding decisions based on sharia law.
"The thing that concerns us is that it will give credibility to sharia." She also raised the question of whether there will be any limits to the implementation of sharia law in Canada. Some accounts on the Internet of the formation of Canada's new Islamic Institute of Civil Justice suggested this will pave the way to Canadian Muslim women being stoned for adultery. Mr. Short said Canadian courts will take any of the sharp edges off decisions based on sharia law.
Even if both partners in a marriage dispute agreed to the stoning of an adulterer, "a decision between two parties does not bind the Canadian judicial system," said Mr. Short.
First Steps Taken Towards Sharia Law In Canada
By Judy Van Rhijn
The International Muslim Organization Hall in Etobicoke, Ont., was the venue for the gathering on Oct. 21. By the end of the day, the delegates had elected a 30-member council which will work towards establishing a Darul-Qada (a judicial tribunal), to be known as the Islamic Institute of Civil Justice (Canada).
The convention is the latest step in a long struggle to have Islamic law recognized in Canada. Shariah is a complex and sophisticated body of law based on religious principles. Muslims must resolve all their commercial and personal disputes according to its tenets.
This has been extremely difficult when there have only been individuals and ad hoc committees providing legal advice and limited mediation and arbitration services. Most dispute resolution has been conducted by Imams, who are learned men connected with local mosques.
Legal scholars, known as ulama, are thin on the ground in North America. Their knowledge is essential in adjudicating complex issues.
One of the key obstacles to establishing an Islamic legal institution identified by a number of speakers was a lack of unity and organizational strength. While the Muslim community is the largest minority in Canada, over one million strong, it is made up of groups from many different countries and different schools of Islam. Each group has organized its own activities and there has been no common cause.
Organizer B. Husain Bhayat was heartened by the turnout. The two main groups - Sunni and Shi'ite - were both represented and there were many Imams and leaders of organizations.
"It seems as if the community was looking forward to something like this," says Bhayat. "If all groups are represented, with hard work and the unity we saw here, we will have no difficulty going forward."
The president of the convention was barrister Syed Mumtaz Ali, who struck the first blow in the campaign for recognition of Islamic law in 1962. He was the first lawyer to swear his oath of allegiance on the Koran.
Syed explained the law of minorities as it is set down by the Shariah. Muslims in non-Muslim countries are required to follow the Shariah to the extent that it is practical.
"The law applies as if to Bedouin wanderers," he said. "We are required by our own law to follow the laws of the country and to follow our own laws. We have a double obligation. You don't have to be the wisest man to see there will be conflicts. . . ."
Syed explained that until recent changes in the law, Canadian Muslims have been excused from applying Shariah in their legal disputes.
Arbitration was not deemed to be practical because there was no way to enforce the decisions. Syed said the laws have recently changed with amendments to the Arbitration Act.
"Now, once an arbitrator decides cases, it is final and binding. The parties can go to the local secular Canadian court asking that it be enforced. The court has no discretion in the matter.
"So, the concession given by Shariah is no longer available to us because the impracticality has been removed. In settling civil disputes, there is no choice indeed but to have an arbitration board."
His message was supported by a speech in Urdu by Maulana Syed Wasi Mazhar Nadvi, a former Pakistani federal minister and long-time mayor of Hyderabad. He spoke of the effectiveness of arbitration in cost and time compared to the great mental agony and spiritual distress caused families if matters drag on or are heavily publicized through court proceedings.
"We have failed to take advantage of this opportunity because we have not been aware of the law, or are too busy earning our livings and getting settled," he said
Maulana Nadvi expressed hopes that the institute will become a non-denominational umbrella for many other ventures including a shelter for oppressed men and women, an orphanage, mental clinics, libraries, and resource centres.
"All these dreams will be fulfilled if we co-operate and the community is awakened to this," he said. "The institute should be influential in bringing Muslims on to one platform - to rise above fickle differences - above cultural, ethnic, and denominational divisions."
The committee is hopeful that the system will be accepted by the Muslim community at large, and in particular, Muslim women. There was only one woman present at the convention. Bibi Zainob Baksh attended in her capacity as president of the Ladies' Muslim Organization. She pointed out that there has been a mediation service in the past but it folded when it failed to attract Muslim women. She is of the opinion that if the present initiative comes to fruition, women will participate "later" in the process.
At present, the new committee will focus on the organization of an arbitration board.
The bylaws should be drafted and approved by Dec. 31.
Testing the limits of tolerance
BY CAROL GOAR
Jan. 16, 2004
It happens to almost every immigrant. The new culture collides with the old. Choices have to be made, traditions relinquished, a composite identity forged.
Usually, the struggle is personal or familial. But sometimes it breaks out into the open, dividing an ethnic or religious community and posing profound questions for Canadian society.
Such is the case with the Islamic Institute of Civil Justice.
The four-month-old organization has driven a wedge between Muslim groups, sent ripples of unease through the women's movement and reignited an old debate: Where does a tolerant nation draw the line between respecting minorities and importing values that clash with its own?
To its defenders, the institute is a tribute to Canadian openness. To its detractors, it is an unwanted piece of cultural baggage.
The proud founder of the institute is Syed Mumtaz Ali, president of the Canadian Society of Muslims.
Thirteen years ago, he wrote a treatise calling for the establishment of Muslim arbitration boards. These tribunals would allow religious scholars and community leaders versed in sharia, or Islamic law, to settle marital and money disputes.
Over time, an informal network of Muslim arbitrators did develop. Now Ali has succeeded in giving it a formal structure and making it part of Ontario's justice system.
"For us, this is a matter of religious freedom," the retired Mississauga lawyer said in an interview.
The institute's most vocal critic is Alia Hogben, executive director of the Canadian Council of Muslim Women.
She cherishes the rights and freedoms that women have under Canadian law. She doesn't want to see them diluted by religious jurisprudence from other lands. She worries that Muslim women who are steered away from the courts will be forced into agreements that are paternalistic and inequitable.
"We believe in the Charter of Rights," she said from her home in Gananoque. "Why bring in a new code when the existing one works well?"
This might have remained a difference of opinion among Canada's 600,000 Muslims, were it not for the recent evolution of Ontario law.
A decade ago, the province started looking for ways to divert cases away from its overburdened court system.
In 1997, Ontario became the first jurisdiction in Canada to require mediation in civil disputes. Both parties had to sit down with an impartial referee and try to reach a settlement before a case could proceed to trial.
Two years later, the province brought family law into the alternative dispute resolution system. It asked litigants to use mediation or arbitration to deal with divorce, child custody and inheritance cases, before going to court.
This gave legitimacy to what Muslim arbitrators were already doing.
Under the Arbitrations Act, Ontario courts are required to uphold awards made by arbitrators, provided both sides entered into the process voluntarily and the outcome is compatible with Canadian law. "People can use any arbitrator they want and decide cases according to the tenets of their own religion," said Brendan Crawley of the provincial Ministry of the Attorney General. "But a court can refuse to enforce an unreasonable result."
Ali responded to this new legal climate by drawing up a plan to "bring order and discipline to all the chaotic arbitration that was going on." Last October, he announced the formation of the Islamic Institute of Civil Justice.
Initially, its creation set off a flurry of wild speculation: Polygamy could become legal in Canada; women could be stoned for adultery; religious leaders could mete out retributive justice.
All of that is nonsense. No Ontario court would enforce a ruling that contravened the Charter of Rights or violated provincial law.
But there are reasons for concern. A Muslim woman in an abusive relationship might consent, out of fear, to submit to an arbitration tribunal rather than exercise her legal rights. A Muslim wife seeking a divorce might be persuaded that it is her religious duty to settle for less support than the courts would have awarded her. A Muslim mother who converts to Christianity might lose custody of her children. A Muslim cleric with limited knowledge of the complexities of sharia might render a one-sided decision.
Islamic law is not inherently unfair to women. But it can be applied in ways that are harsh and regressive by Canadian standards.
"To speak out against this institute, with all the anti-Muslim sentiment that's out there, is difficult," said Hogben on behalf of the 900 women in her organization. "We don't want to give the media weapons against Islam.
"But we have to be honest. We don't think it bodes well for women."
Other women's groups have offered their support to the Canadian Council of Muslim Women. Journalists are watching closely. A lively debate is taking place on the Internet.
Back in his Mississauga living room, Ali is weary of the controversy. He feels misunderstood. "Religion is a part of life," he says. "There is no separation between the secular and the religious."
For him that is undoubtedly true.
For other Muslim immigrants, it is not. Sharia is part of a past that they
have chosen to leave behind.
May 30, 2004.
Alia Hogben doesn't want to be waging a public battle with her fellow Muslims. But she and other women such as her are speaking out these days because they fear Muslim women's rights will be threatened by new civil tribunals due to open soon in Ontario.
What is upsetting Hogben and many other Muslim women in the province is that the tribunals will arbitrate marriage, family and business disputes based on Sharia, a 1,300-year-old body of Islamic laws.
There is nothing novel in such arbitration tribunals. Ontario has used them for years, as an alternative to the overcrowded courts handling such issues as divorce, child custody and inheritance cases.
Some of these tribunals are run by religious groups — Hassidic Jews have had their own legally binding arbitrations for years, as have some Catholics and Ismaili Muslims. However, the vast majority are non-secular, operated by professionals trained in dispute resolution.
The proponents of the Muslim tribunals, the Islamic Institute of Civil Justice, chafe at suggestions the tribunals won't be fair to women. The supporters say they will live by the same rules as everyone else. They will be guided by a "Canadianized sharia," says Syed Mumtaz Ali, the retired lawyer who is the driving force behind the tribunals.
In other words, if there is a conflict between Sharia and Canadian law, the law of this country will prevail. In fact, the legislation provides that no ruling by any such tribunals, regardless of who runs them, can violate provincial law or contravene the Canadian Charter of Rights.
But Hogben, head of the 900-member Canadian Council of Muslim Women, remains unconvinced. While Islamic law is often portrayed as being biased against women, in fact the Qu'ran espouses the equality of the sexes. But like Jewish law and Christian canon law, Islamic law has been applied in different ways in different times and places.
At times, practising Muslims admit, Sharia law has been misused to deprive women of their rights. Critics question whether the proposed tribunals will, for instance, favour men over women in pre-marital agreements or in divorce settlements.
The Arbitration Act, which governs tribunals, provides safeguards against wrongdoing. Besides decreeing that rulings must be consistent with Canadian laws, it ensures there is a right to appeal decisions to a regular court. And choosing to use a tribunal is voluntary. No one can be forced to give up their right to have a case heard in a regular court.
But again critics question whether the process will indeed be voluntary, or whether women will be pressured by their religious leaders and their communities into participating. Immigrants, who do not know the English language or their rights in Canada, would be especially vulnerable.
"Women are afraid they will not be `good' Muslims if they don't go along with (the tribunals) or that they'll be accused of blasphemy," Hogben says.
Clearly, the situation calls for vigilance, both by Muslims and by the Ontario government. Ali has said critics are welcome to monitor any arbitration, appearing as friends of the court, if they think the rights of women will be violated. Critics should be prepared to take him up on his offer.
At the same time, all participants need to fully understand their Charter rights when they appear before a tribunal, whether it be run by Muslims, Jews, Catholics or anyone else. They also need to know their participation is voluntary, and that they can appeal any decision they feel is unjust.
It may be that an education campaign, especially in immigrant communities, is needed to inform people of their rights.
It may also be that the act needs to be bolstered so tribunals are required to explain the decisions behind their rulings in writing.
The crucial part is that everyone who becomes involved in the tribunals needs to clearly understand that, in Canada, our Charter of Rights and Freedoms is supreme over all other laws.
No tribunal can deal away those rights.
Life under sharia, in Canada?
May 29, 2004
Homa Arjomand knows what it's like to live under sharia law. In Iran, she endured it until someone tipped her off that she was about to be arrested and imprisoned. Many of her activist friends had already been tried and executed. She, her husband and two small children (the youngest was barely one) escaped on a gruelling trip by horseback through the mountains. That was in 1989.
Today, she lives in a suburb northeast of Toronto. Her job is helping immigrant Muslim women in distress. And now she is battling the arrival of sharia law in
"We must separate religion from the state," she says emotionally. "We're living in Canada. We want Canadian secular law."
Sharia law in Canada? Yes. The province of Ontario has authorized the use of sharia law in civil arbitrations, if both parties consent. The arbitrations will deal with such matters as property, marriage, divorce, custody and inheritance. The arbitrators can be imams, Muslim elders or lawyers. In theory, their decisions aren't supposed to conflict with Canadian civil law. But because there is no third-party oversight, and no duty to report decisions, no outsider will ever know if they do. These decisions can be appealed to the regular courts. But for Muslim women, the pressures to abide by the precepts of sharia are overwhelming. To reject sharia is, quite simply, to be a bad Muslim.
Ms. Arjomand's cellphone is constantly ringing -- with calls of support, or calls for help, or updates on various crises. A client of hers has just that day died of cancer, leaving behind a nine-year-old daughter. The husband was brutally abusive, and now the dead woman's family is terrified that he's going to take the daughter, who was born in Canada, and go back to Iran. Ms. Arjomand has been trying to get Children's Aid to intervene.
In the burgeoning Muslim communities around Toronto, it's customary to settle family disputes internally, by appealing to an imam or an older person in the family. "I have a client from Pakistan who works for a bank," Ms. Arjomand tells me. "She's educated. She used to give all her money to her husband. She had to beg him for money to buy a cup of coffee. Then she decided to keep $50 a month for herself, but he said no."
They took the matter to an uncle, who decreed that because the wife had not been obedient, her husband could stop sleeping with her. (This is a traditional penalty for disobedient wives.) He could also acquire a temporary wife to take care of his sexual needs, which he proceeded to do. Now the woman wants a separation. She's fighting for custody of the children, which, according to sharia, belong to the father.
The law permitting a sharia court was passed in 1991, when Ontario sought to streamline the overloaded court system (and save money) by diverting certain civil cases to arbitration, including arbitration conducted on religious principles. Jewish courts have operated in the province this way for many years. "People can agree to resolve disputes in any way acceptable," said Brendan Crawley, a spokesman for the Ontario attorney-general. "If they decide to resolve disputes using principles of sharia and using an imam as an arbitrator, that is perfectly acceptable under the arbitration act."
Promoters of Islamic law in Canada have been working toward this goal for years. Last fall, they created the Islamic Institute of Civil Justice, which has already chosen arbitrators who have undergone training in sharia and Canadian civil law. The driving force behind the court is a lawyer and scholar named Syed Mumtaz Ali, who was quoted last week saying "to be a good Muslim," all Muslims must use these sharia courts.
Many Muslims, including many women, are enthusiastic about giving Islamic law an official place in Canada, and they emphatically deny that it will harm women's interests. On the contrary. They insist that under Islam, a woman's rights are protected. "We follow the Islamic law, secure with a perfect sense of equality between the sexes," wrote Khansa Muhaseen and Nabila Haque in a letter to the Toronto Star, where the sharia debate has been raging fiercely.
Opponents of the new tribunals argue that the government's imprimatur will give sharia law even greater legitimacy. Sharia law is based on the Koran, which, according to Muslim belief, provides the divine rules for behaviour. What is called sharia varies widely (in Nigeria, for example, it has been invoked to justify death by stoning). The one common denominator is that it is strongly patriarchal.
Alia Hogben is president of the Canadian Council of Muslim Women, a pro-faith group with members from every Muslim culture. But the council was never consulted about the new sharia courts, and it strongly opposes them.
"This is a very difficult position for us to be in because we are believing women," says Ms. Hogben. "But to apply Muslim family law in Canada is not appropriate." In Britain, she adds, the government has flatly rejected councils for sharia law.
Both Ms. Hogben and Ms. Arjomand -- the former an observant Muslim, the latter not -- are lobbying hard for Ontario to change the arbitration law.
(Ms. Arjomand has launched a petition, which you can find through a web search for "International Campaign Against Sharia Courts in Canada.")
When Ms. Hogben's family came to Canada 50 years ago, the Muslim population was tiny. In the 1970s, she and her husband started a tiny mosque in Toronto that they shared with Albanians and Bosnians. Today, Canada's Muslim population numbers more than 600,000, and many Muslims live in self-contained enclaves where there is little interaction with the outside world. Ms. Hogben welcomes the stronger sense of identity among Muslims now. But she warns that many of the new arrivals have brought with them a far more rigid version of Islam. "A lot of money is being poured into North America from very traditional groups from Saudi Arabia and Libya," she points out. These groups are not known for their tolerance of other versions of Islam, or for their progressive attitudes toward women.
Immigrant women are among the most vulnerable people in Canada. Many don't speak English, are poorly educated, and are isolated from the broader culture. They may live here for decades without learning the language, and stay utterly dependent on their families. They have no idea of their rights under Canadian law.
Both Ms. Hogben and Ms. Arjomand say that we are sacrificing these women on the altar of multiculturalism.
"This is an abuse of multiculturalism, says Ms. Hogben. "There is a lack of courage [on the part of governments], and also a fear of offending Muslim sensitivities."
"I chose to come to Canada because
of multiculturalism," says Ms. Arjomand, who gave up a career in medical
science to work with women who are victims of abuse. "But when I came here,
I realized how much damage multiculturalism is doing to women. I'm against
it strongly now. It has become a barrier to women's rights."
Canada to allow Islamic courts
May 20, 2004
The Jewish community has its rabbinical courts called Beit Din’s.
People of the First Nations have their sentencing circles.
Now Canada’s Muslim community is moving ahead with plans to structure Sharia tribunals where family disagreements and inheritance, business and divorce issues will be judged on Islamic law based on the Koran.
Under the proposal, the tribunals will not deal with criminal matters and will have to respect all provisions of the Canadian Charter of Rights and Freedoms.
Cases that go before the Muslim arbitrators must have the voluntary assent of all parties involved.
While the plan for Sharia courts
in Canada is well underway in Ontario with the establishment of the Islamic
Institute of Civil Justice to train arbitrators in Sharia and Canadian
civil law, the move is now taking root in British Columbia.
The B.C. Muslim Association, which represents 56,000 B.C. Muslims plans to discuss Sharia courts for the province at a board meeting in two weeks.
“It seems like a good idea and we plan to discuss and study it at our board’s next meeting,” president Daud Ismail told The Asian Pacific Post.
He said the association will likely form a special committee to oversee the plan before approaching B.C.’s Attorney General.
Sikander Shah, the B.C. regional director of the Canadian Islamic Congress said the issue is on the agenda for the June board meeting.
Wahida Valiante national vice-chair of the Canadian Islamic Congress said she expects to see Islamic courts settling family, matrimonial and civil disputes across Canada over the next few years.
While many of Canada’s 600,000 Muslims have applauded the opportunity to settle differences according to Sharia law, which is drawn from the pages of the Koran and the teachings of the prophet Muhammad, some have voiced serious concerns.
“If I am a woman of faith, and the community of people who see themselves as leaders say that if I do not follow the Sharia court here, the Islamic Institute, then I will be accussed of blasphemy and apostasy,” Alia Hogben of the Canadian Council of Muslim Women told the media.
She expressed fears and concerns that Muslim women will feel religious and social pressure to enter the Sharia system when they would rather avoid it.
Viewing the establishment of Islamic courts in Canada as a threat to women, Haydar Ketabchi writes, “The threat of implementing Islamic courts in Canada under the pretext of religious freedom, tolerance and cultural sensitivity must be taken seriously and exposed as the Islamist’s most recent organized attempt to institutionalize male domination, gender apartheid, xenophobia, and Islamic law around the world. Under the aegis of the Islamic Institute of Civil Justice (IICJ), Islamists have organized to impede women’s rights and individual liberties.”
“Will there be legal recourse to pressure teenagers belonging to Muslim families into Islamic dress codes, arranged marriages, and limited social interaction with gays, atheists, or Jews at school? Will male family members become the “judge and jury” and “punishers” of the entire household by enforcing Sharia, as they freely do so in Islamic states?” asks the Muslim writer.
“Muslims in Canada are free to worship their God. They have built mosques, businesses, communities and cultural organizations all within the auspices of Canada’s Charter of Rights. Where have Canada’s laws limited them in those pursuits?”
Mohamed Elmasry, President of the Canadian Islamic Congress said : “If Canadian Muslims have an impartial body they trust, it will ease the backlog in the courts,” adding “many judges prefer this.”
As Canada moves to be the first nation in the western world to allow Sharia courts, Ontario will act as a test bed for the efforts to allow Muslims to settle civil disputes through Islamic law.
A 1991 Ontario law permits arbitration according to religious principles.
“People can agree to resolve disputes any way acceptable,” said a spokesman for the Ontario attorney general.
He said the arbitration act establishes a number of safeguards, including the requirement that parties enter into arbitration only on a voluntary basis. Any decisions by arbitrators are subject to court ratification.
The official said no criminal matters would be considered by Sharia arbitrators and no corporal punishment could be imposed.
Syed Mumtaz Ali, the president of the Canadian Society of Muslims, considered the key force behind the movement for an Islamic court system in Canada began lobbying for Sharia tribunals in Canada two decades ago.
No stranger to controversy, Syed Mumtaz Ali was called to the Ontario Bar in 1962 where he became the first immigrant from South Asia in Canada to take his legal oath on the Koran instead of the Bible.
The retired lawyer states on his website that “Muslims living in non-Muslim countries are regarded as “Bedouins”. As such “a Muslim is bound to regulate his conduct according to the laws of Islam, wherever he may be.”
“So it is necessary that such Muslims must acquaint themselves with the local laws of the non-Muslim countries so that they can learn what Muslim Laws they can observe or follow and also what Muslim laws they will not be able to observe. For example, as polygamy is unlawful in Canada, Canadian Muslims are not allowed by Canadian law to marry a second wife.”
Wahida Valiente told The Asian Pacific Post that the reaction so far to the plans for Islamic courts has been knee-jerk Islamophobia by right-wing commentators who are ill-informed.
The professional family counselor and national vice-chair of the Canadian Islamic Congress said the bottom line people have to understand is that Canadian laws cannot and will not be violated by the Sharia courts.
Valiente agreed that some of the concerns raised need to be addressed, especially on the issue of who is going to be appointed to sit on the tribunals.
“As a woman and a Muslim I will be the first one to oppose any move that will be discriminatory or violates the Canadian constitution,” she said.
Ahmad Kutty, a senior lecturer at the Islamic Institute of Toronto and Toronto lawyer Faisal Kutty said Islamic dispute resolution already exists in the community and people are abiding by decisions that are often times crude or unfair.
“Formalizing the process will allow for greater transparency and accountability,” they wrote.
“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,” their article suggested.