October 2002


THE CANADIAN SOCIETY OF MUSLIMS P.O. BOX 143, STATION P, TORONTO, ON M5S 2S7 http://muslimcanada.org

With the name of God, the Compassionate, the Merciful

Allahu Akbar - God is great
 

Establishing an Institute of Islamic Justice
(Darul Qada)

by Syed Mumtaz Ali

As for Muslim's living in non-Muslim countries like Canada, for instance, the Prophet p.b.u.h, has laid down the law that they are to be considered as if they are non-resident, wandering Bedouins.(Ka Irabil Muslimeen.) Such Muslims, therefore have to observe the Divine Law of Islam, no matter where they live.

This is the principle on which our obligation to observe the Divine Law is based. As a general rule, law is based on principles, yet a principle can sometimes even harm or hurt people. A general principle cannot be changed because a particular person or a particular group of people suffers or has suffered on it's account. Therefore, the philosophy of law in Islam stipulates that law should embrace one and all and that an exception should be made only in cases of genuine necessity.  (Zaroorah) This philosophy is based upon the Quranic principle of "On no soul doth God place a burden (or duty) greater than it can bear." (2:286) This is the assurance that Allah s.w.t. will accept from each soul only such duties as it has the ability to offer. That means that Muslim minorities living in foreign lands must accommodate themselves accordingly. In order to (a) cope with the difficult circumstances encountered in non-Muslim countries as good or bad treatment of minorities depends so much  on the whims of the rulers of foreign countries (for further information click here) and, (b) to obey the local laws of the foreign countries of residence.

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.

Almost one-third of the 1.2 billion Muslim population in the world live as a minority group in non-Muslim countries (for further information click here) The law of minorities (Fiqh Aqliyat) is a very specialized segment of Muslim law, yet we do not have many scholars or lawyers who have taken the trouble to specialize in this field. Many individuals, scholars, Imams of mosques, other leaders and Muslim organizations with or without the sufficient required knowledge, training and expertise in this field have been struggling along in good faith with great sincerity, selflessness and even personal sacrifice to help Muslim brothers and sisters in settling their disputes, particularly in matrimonial matters which involve the highly complex issues of Canadian family law.

The Canadian Society of Muslims (since1986 and even earlier), like other Muslim organizations or individuals who are involved in this field of activity, have come to the conclusion that the time is ripe for us to consolidate or pool our academic and professional skills as well as our financial resources in such a way that we can better serve the needs of our ever increasing Muslim population here in Canada. Alhamdu-Ii-Allah, Muslims now constitute the largest religious minority group in Canada - and their needs have increased proportionatel. So it is high time for us all to realize the truth and meaning of the Persian maxim, "Allah s.w.t. created every individual for a particular function or purpose." 

We, (The Canadian Society of Muslims) therefore, suggest that the following steps be taken, (not only in the collective interest of Canadian Muslims, but also in the interest of all Muslim minorities - indeed in the interest of the whole ummah:

1 Establish a Darul Qada - a judicial tribunal that will, in effect, operate as a private Islamic Court of Justice without in any way infringing on any Canadian judicial jurisdiction or legal authority or violating any Canadian law. This institute will, in effect, operate as a formal extension of the Alternate Dispute Resolution scheme of the Ontario government. In fact, The Canadian Society of Muslims has established a Muslim Marriage, Mediation/Arbitration Service, to settle disputes "out of court," by the consent of the disputing parties (Mediation), or by an Arbitrator under the Arbitration Act (Click here to see our brochure.)
2 Establish a panel of qualified Arbitrators (a) to sit as "private judges" on the Muslim Arbitration Boards under the auspices of the Institute of Islamic Justice, and  to (b) conduct Mediations referred to them by Ontario Family Courts or other civil courts.
3 Establish facilities for teaching, training and for acquiring legally required qualifications (e.g. regular and approved courses in mediation/arbitration)
4 Establish a permanent Committee to coordinate with other Muslim jurisdictions and with all Muslim mediation/arbitration tribunals within  (as well as outside) Canada in order to develop, improve and enhance the quality of service for all Muslims.
Establish facilities for large scale advertising and propagation using all available forms of communication and electronic media.
Establish effective and efficient facilities (on a permanent and ongoing basis) for fund-raising in order to defray the costs of running all of the above and other relevant services (in addition to tariffs and fees charged for the services rendered).
7 Establish an ad-hoc committee to discuss all of the above in order to work out the details of establishing Darul Qada as we go along.

The Canadian Society of Muslims (with the moral support of our Muslim community) is of the view that our campaign has now made it possible to establish an independent tribunal for Islamic justice within the legal framework that is permitted by the Ontario and Canadian laws. Alhamdu-Ii Allah, the proposed Darul Qada will enable us to enjoy a great deal of autonomy (although not as complete an autonomy as non-Muslims living in a non-Muslim country enjoy under the Islamic law (click here for further information) in living our lives in accordance with, and in compliance with, the laws laid down by our beloved Prophet p.b.u.h. for Muslim minorities in that, specifically, we will be able to:

i create our own Islamic tribunal for settling disputes among consenting Muslim parties
ii appoint our own Muslim arbitrators and non-Muslim associate arbitrators to act as `private judges' apply our own Muslim Personal law, including family law (e.g. marriage, khula, divorce, custody, guardianship, mehr, division of property, wills and inheritance, gifts, waqf etc.)
iii by consent of parties, laws (fiqh) of any school e.g. Shiah or Sunni (Hanafi, Shafi'i, Hambali, or Maliki), may be applied to the arbitration proceedings.
iv Arbitrators' decisions ("awards") are final in almost all cases. In the event that one of the parties m Arbitration decides to renege on their initial agreement to accept and comply with the Arbitration decision, we will be able to enforce those arbitration decisions ('awards) with the help of the Ontario/Canadian justice system.

For further information we recommend you study the four links which follow each step of our campaign from its inception . . .one (appendix B1 to B5), two, three and four.
 
 

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