August 2004

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


An update on the
Islamic Institute of Civil Justice
(Darul-Qada)

We’ve been campaigning, and breaking new ground for the recognition of Muslim Personal/Family Law in Canada. A three-page NewsBulletin under the title of “Establishing an Islamic Institute of Civil Justice (Darul-Qada)” was published and widely distributed in October of 2002. It can be seen and/or printed from our website located at the above address. Briefly, our document sets out our Plan of Action, in our formal, official mandate to do the following:

1 FIRST Inform Canadian Muslims that the Islamic law of minorities requires us to obey both the Islamic law (it has been referred to frequently as ‘Shariah’ which is technically incorrect) and Canadian law at the same time and there is no conflict here between being a good Muslim and being a good Canadian because the Shariah has the elasticity to adjust itself to the local Canadian legal system/regime.

THEN give further details as to why we have to obey Canadian law first and foremost (in spite of a few contradictions with some of the Shariah injunctions—because that is what our Shariah obliges us to do).

2 Take our previously outlined steps (there are seven of them) to establish a Darul-Qada (a private Muslim Court of Justice/Arbitration). For your information, the seventh step requires that an ad-hoc committee/council be formed to discuss the details of how the Institute should be set up.

3 To distribute at a public meeting called for the purpose of establishing our ad-hoc council, a comprehensive, 52-page booklet outlining:

a) a few historical highlights of our 12 year Muslim personal law campaign,
b) the principle of judicial autonomy for minorities like Canadian Muslims to avail themselves of their guaranteed rights and freedoms under the Canadian Charter of Rights and Canadian constitutional law.

The Canadian government and Canadian society has little power to oppose the establishment of Islamic Institutions that have been set up by Muslims, because Muslims are only exercising their basic and universally accepted constitutional rights - including the freedom of religion, multiculturalism and principles of equality and human rights. Those are rights that are considered to be of the highest importance in Canada.

This publication is available on our website under the title of Islamic Institute of Civil Justice & Muslim Court of Arbitration at this address: http://muslimcanada.org/DARLQADAMSHAH1.html

4 Accordingly, conforming to the mandate of Oct. 2002, an elected ad-hoc committee/council of 30 members was formed at a general public meeting of the then unincorporated Islamic Institute of Civil Justice that was held in July of 2003 at the International Muslim Organization for the purposes set out in that document. The ad-hoc council was then given the deadline of Dec. 31, 2003  to complete its mandate and to terminate on that date as well whether the mandate was completed or not.

To advance these objects, a second public meeting was held at the Coopers Avenue Mosque in Mississauga, to discuss what kind of transitional steps should be taken towards the goal of formally incorporating our non-profit corporation without share capital. The application for incorporation had been already sent to the Ontario government on July 11, 2003.

• The ad-hoc council expired on the appointed termination date of December 31, 2003 and the duly incorporated Institute automatically continued the Institute’s activities. The ad-hoc council was a transient, short-term organ of the Institute.

• The Institute was granted a Letters patent of Incorporation #1579565 as of the 15th of January 2004. Two important provisions of the Letters patent can now be brought to the attention of the Muslim community:
 

1) Clause 4(b)(i) and (ii);
2) Clause 5 - Special provision: [see item 4]
3)  The name DARUL QADA - Muslim Court of Arbitration has also been registered under the Business Names Registration Act
4)  clause 5…

(i) To inculcate among Canadians and new immigrants, and in particular the members of the Muslim community, the proper understanding and appreciation the principles, values and legal rights enshrined In the Canadian Constitution and the Charter of Rights and Freedoms, including the preamble which states that Canada is founded on the principles that recognize the supremacy of God and rule of law and which comprise the foundation of the Canadian Civil Justice system as well (ii) To foster and encourage and to teach and impress by frequent repetition or admonitions all of the above Principles of Civil Justice In the everyday life of Canadians, with particular reference to their adoption through the Canadian judicial system as well as through the alternate dispute resolution system of lawfully sanctioned mediation and arbitration proceedings.”


• The newly incorporated corporation under the name of The Islamic Institute of Civil Justice Studies was duly organized, by-laws were passed and confirmed, an election was held, officers were appointed, the Executive Council, comprised of (4) males and (2) female members, a Board of Trustees comprising of (12) male and (6) female members; and a 30-member General Council (Shura) was also chosen—all in the month of February, 2004.

• Qari Attaullah, Faizal Ali and Azim Hosein were chosen as President, Secretary-General and Treasurer respectively.

• A public announcement concerning election and so on, was made through a press release that was published in March, 2004.

• Upon the announcement of the establishment of the Institute, a debate in the media erupted like a volcano and anti-Islamic factions decided to wade into the debate in a discriminative, inflammatory and sensationalized manner. The ongoing debate was mainly about the estrangement of some women from their faith or at least from a Muslim culture of patriarchy among other things. This emotional debate turned into a drama staged by a certain women’s group who seemed to be shadow-boxing some sort of phantom enemy. They had an imaginary fear that Muslim women would be pressured into taking their disputes to Muslim arbital tribunals!

• Even the Ontario government appears to have succumbed to diatribes and innuendo in the media and some other groups (that began holding public meetings to oppose the establishment of “Shariah courts”, at the national and international levels). So the government of Ontario decided to call for a full review of the Arbitration Act, to be headed by Marion Boyd, a former NDP Attorney General.

• There are rumours that the Ontario government is now considering the imposition of a problematic remedy of mandatory, independent legal advice for parties coming for arbitration. This will be overkill -- a draconian measure.

• The Institute has therefore written to the Premier, the Attorney General, the Minister in charge of women’s issues and to Marion Boyd, who is in charge of the review, recommending that a discretionary, rather than a mandatory independent legal advice would be more appropriate.

• The Institute has recommended an amendment to Section 14 of the Arbitration Act by adding subsection (3) as follows: “The Arbital tribunal may, at its discretion, request all parties or anyone of them, to submit evidence to the effect that they have obtained independent legal advice, or have waived their right to do so, in order to ensure that they are fully aware that: a) they do have alternative legal right to take their dispute to a court of law for adjudication, and b) they have not been subjected to any duress or undue influence whatsoever, in voluntarily consenting to appoint an arbital tribunal to conduct arbitration of their dispute.”

• As to the media debate, our website provides some samples under the title of “Media Response” at the following web address: http://muslimcanada.org/darulqadanews.html Just a couple points may be mentioned here:

• Responses like “Nobody thinks the extreme sections of the Shariah will be carried out. But if Canada accepts this, it means that it will give credibility to the Shariah law around the world.” gives us a clear indication that “this debate is not about Ontario or Canada alone. It is about the world of Islam, more particularly the role of women in it, and the debate on it involving Muslims and non-Muslims; as well as Islamophobes who routinely use it as a stick to beat up Muslims.” ... “It is about the evolving relationship between the West and its growing Muslim populations -12 million in Europe, up to 6 million in America and more than 600,000 in Canada.”

• This is all borne out by the fact that the Institute was inundated by an immense number of local and international media requests for interviews on the subject. At least one benefit out of this massive media coverage has arisen, that is the opportunity for the Institute to try to not only refute some of the serious adverse propaganda out there, but also to clarify and demystify a few important points about Islam and thereby bring to light how all kinds of misconceptions and distortions about Islam and Muslims seems to persist and permeate the whole Western spectrum of journalistic folly. Here are only a few examples to illustrate my point:

• For some unknown reason, it is believed that the Muslim Court of Arbitration is confined to serve only Muslims and no-one else. The fact is that this service, this facility, is open to everyone – Muslims and non-Muslims alike.

• It is assumed by some that only Muslims would be eligible to become arbitrators. People are shocked when we point out that we intend to use all kinds of qualified people e.g. retired non-Muslim or Muslim Ontario/Canadian judges or experienced professional arbitrators -- especially experienced non-Muslim or Muslim lawyers and paralegals.

• For some reason, it is assumed that any Tom, Dick or Harry with no expertise or qualifications in Canadian and Muslim law can become an arbitrator and start dispensing justice (or injustice!) The fact is that the Institute has managed to have a good number of its executives take and successfully complete the ADR Institute of Canada’s approved courses in Arbitration law and its process.

• The Islamic Institute’s own recognized courses (for potential arbitrators) in Islamic law (Fiqh) are planned and are scheduled to commence as soon as sufficient registrants come forward. Right from the start, we have insisted that one of the main reasons for establishing the Institute is to bring some order and discipline to a code of professional ethics which seem to have grown like mushrooms to the chaotic back alleys, closed door, ghetto-based confusingly and mistakenly so-called “arbitrations” which have the tendency to flourish.

• The media seems to think that the arbital tribunals be comprised of only one arbitrator. Actually the Institute plans to have more than one or two arbitrators on the arbital tribunals, for instance, the main arbitrator could be a retired non-Muslim judge who is experienced and knowledgeable about Canadian law and who will also have an associate arbitrator sitting with him or her on the tribunal who will be an academic or a recognized expert/authority in Muslim law, for example.

Or, the main arbitrator could arrange for an expert witness in Muslim law and let him or her appear as an expert witness and be subjected to cross-exanimation. Or, they could get a legal opinion in writing from them on a particular complex point of Muslim law.

• It has been assumed by many people that our Muslim court will not be dealing with other laws, apart from Canadian law or Muslim law. The fact is that Hindus, Christians, Jewish or non-religious atheists or agnostics, could also seek arbitration with the Muslim court. Obtaining the services of expert scholars in any religious or other laws is always possible. Our regular Canadian courts manage to get expert witnesses on all kinds of special subjects. Muslims courts can do the same as well.

• Muslim arbitrators, it is assumed, will be inclined to render decisions which will violate Canadian laws, particularly the Charter of Rights, or even order the chopping off of hands, for theft, and stoning to death for sexual offences. The fact of the matter (and the very first and the most important requirement) is that arbitration cannot apply those provisions of Muslim law/Shariah, which do not agree with Canadian laws or Canadian value system

• It has been assumed by certain women’s groups that safeguards in the Arbitration Act are not sufficient enough to assure the fair and equitable treatment of the parties. The fact of the matter is that arbitrators are duty-bound to be impartial, fair and equitable. Otherwise they are taken to task, their appointment challenged and they are removed from the tribunal.

• It is widely assumed that the Institute will have to choose some other Muslim country’s ‘model’ of Fiqh (Muslim law) interpretation (e.g. Pakistan, Iran, Egypt, Algeria etc.) The fact is that every Muslim country has adopted the Shariah (Fiqh) to suit its own peculiar circumstances, value systems and cultural traditions and so on. That is why they differ so much.

In the Canadian case, the Shariah (Fiqh) will have to be similarly adapted, watered-down and “Canadianized,” if you will, just as the Muslim Personal law in India was Anglicized. It is still sometimes referred to as the “Anglo-Muhammeden law”.

Now only those provisions of the Shariah that do not conflict with Canadian law/values will be applied for arbitration of disputes in Canada.

This is the compromise and Muslim Canadians will have to accommodate themselves to it.

In other words, “immigrant integration has to be a two-way street.’ This has been the mantra in the West for many years. Previously it had meant mostly that the receiving society had to change, while “no questions” were asked of the immigrants. The real spirit of the Canadian multicultural approach has changed all that, so that now both parties will have to accommodate each other.

•    Similarly, it is assumed by many people that it is for the arbital tribunal to decide as to which of the five schools of law (within Sunni and Shiah Muslim faiths) is to be applied. Contrary to this assumption, the law requires that the parties to the dispute have to ‘designate the rules of law’ that they would like to be applied to their case and the arbitrator will have to comply with their request. The parties are free to designate whatever law they choose, e.g. (a) Indian, Iranian, Egyptian or (b) Hanafi, Safii, Maliki, Hambali, or Jafri interpretations of Muslim law.

•     It is assumed by the media that Western legal systems offer better rights to women compared to Muslim legal systems. The reality is exactly the opposite. Western systems have been and still are actually very primitive and unfair to women. Under Islamic law, a woman occupies a superior legal position to that of her English or European counterparts. If one wants to compare and contrast women’s position in Islam, one must take into consideration all of the facts, not isolated practices. In fact with regards to certain aspects of morality, Islam is more rigid and a more puritanical system than certain other systems of life in our times.

Under the Islamic legal system, marriage is a civil contract. It confers no rights on either party over the property of the other. The legal capacity of the wife is not plunked into her husband’s; she retains the same powers of using and disposing of her property, of entering into all contracts regarding it, and of suing and being sued, without the husband’s consent or concurrence, as if she were still unmarried – she remains a full independent human being and a legal personage.

Unlike the Ontario family law provisions respecting matrimonial residence whereby the wife is forced by law to give away a 50% share of her matrimonial residence to her husband, even if she had brought this property out of her own individual funds and paid the whole, 100 %, price of this home. (Please see the many articles on the Status of Women on our website.)

Similarly, the Islamic contract of marriage gives the husband no power over the wife’s person beyond what the law defines, yet none whatsoever of her goods and property. The parties to the marriage contract in a Muslim marriage agree between themselves as to which of the two will the have the right to terminate the marriage by divorce without going to court. If they fail to enter into a contract respecting the right to divorce then by default, the husband gets the right to divorce.

Finally, keep in mind these two important points:

1. In spite of the capacity for Muslim law to adapt itself and to develop according to circumstances, there will be no question of recognizing the extreme liberty which a woman enjoys today in fact and in practice, in certain sections of social life in the West. Islam demands that a woman should be a reasonable being. It does not expect her to be either an angel or a demon.

2. As Dr. M. Hamidullah puts it, “To sum up, in a way, the Islamic teaching on women: she is considered equal to a man in certain respects, but not so in certain others. This could be understood better in the description of her obligations and rights in the spheres of religious practices, social duties, and a very comprehensive duty of morality. As to a woman’s rights, one may even say that in certain cases the rights of women are held to be more important, for instance, in relation to protecting her honour against false accusations.” As to her property rights, we have already mentioned above that according to the Islamic law, a woman possesses a most absolute right over her property.

It seems to be the hobby of the anti-Islamic Western media to insist on spreading the myth that the Muslim law of inheritance is full of flaws and is oppressive to women in particular. The fact is that the Muslim law of inheritance happens to be the best and the fairest in the world. No legal system or civilization has yet succeeded in giving the world anything that comes close to the fairness of this Islamic system. Western academics and jurists are full of praise and have testified to its beauty and superiority not only in the British House of Commons, but also in legal textbooks and treatises written by British and other Western jurists.

Now, as to a woman’s right to inheritance, the Western media shamelessly misinforms and misleads their readers in essentially asserting that a male always takes a share double to that of a female. The fact is that sometimes, but not always, the male may take a share double to that of a female,but only when they both belong to the same category of heirs. For example, the Quran [4:11] commands that, where the father and the mother will get 1/6; and where the Quran states in 4:12 that the shares of uterine brothers are equal. In both these cases the males and females inherit as the male and female, but NOT as relatives with specific economic and social responsibilities like a son and daughter (brother-sister).

It must always be remembered that in the Islamic law of inheritance, a great deal of importance is given to the blood relationship of surviving relatives so that a relative nearer in degree to the blood relationship, whether they be male or female, will get a portion of inheritance larger than the distant relative. As such, a closer female relative could in certain cases get more than the male. For example, if the deceased left behind a wife, a daughter (or a sister) and an uncle, the estate will be divided as follows: wife: ¼; daughter: ½; uncle: ¼.

•      Another example of a media misconception: the Western media assumes that like secular Christians, Muslims will also make their choices on the basis of material benefits/gains alone. Contrary to this misconception, the fact is that every action of a Muslim is motivated by spiritual considerations: as to whether or not the action will entail reward or punishment in the life of the Hereafter. This dominant consideration, rather than the prospect of material benefit or disadvantage alone, permeates every aspect of a Muslim’s life. It is the axis around which their whole life revolves. The Quran tells us about the root-source of every action. Every act, deed, or movement of a Muslim must consequently be in accord with Muslim law/Shariah injunctions. A Muslim cannot be a Muslim without obeying  Muslim law in its totality.

In the light of this very central and pivotal role of Muslim law, one can easily understand that the reason why a Muslim chooses to go to a Muslim Court of Arbitration instead of a secular Canadian court, is that he or she must bring in a spiritual dimension and let this spiritual consideration play a determining role. A Muslim, consequently, makes their decision in this respect not because they are likely to get the same or better rights or material benefits from a Canadian Court or the Muslim Court. A Muslim’s choice in favour of the Muslim Court is made primarily because the Canadian Courts do not have the power/authority to apply Muslim law to the Muslim parties litigation. In other words, going to secular Canadian Courts means that a Muslim will be deprived of his or her constitutionally guaranteed right to practice their religion.

Consequently, a Muslim must take their dispute for settlement so as to be a good Muslim. This has been commanded for Muslims to follow in the Quran, to a religious arbital tribunal where Muslim law could be applied. He or she hopes to be rewarded in the Hereafter for their obedience to this law. It is every Muslim’s belief that (according to article six of the Islamic faith) on the Day of Final Judgement, the determination as to whether they were a good Muslim or a bad Muslim will be made by none other than the Almighty Lord alone and by nobody else. He may be rewarded, punished or forgiven by the Almighty Lord Himself. For a Muslim, spiritual sanctions are much more crucial and effective than the legal sanctions an punishments exacted in the life of this temporal world. This belief in the cause-effect relationship between one’s acts and deeds of this phenomenal world and the reward or punishment of everlasting life of the Hereafter is the heart and soul and the very essence of the Islamic way of life. This is the fundamental difference between the secular and theocratic, between the Canadian, Christian and the Canadian Muslim systems of life.

From paragraph 153 Introduction to Islam by Dr. M. Hamidullah:

Eschatology
153. The Prophet Muhammad has also demanded belief in the doomsday. Man will be revived after his death, and God will judge him on the basis of his deeds during his life in this world, in order to reward one’s good actions and punish them for the evil ones. One day our universe will be destroyed by the order of God, and then, after a certain lapse of time, He Who had created us first would bring us back to life. Paradise as a reward and Hell as a punishment are but graphic terms to make us understand a state of things which are beyond all notions of our life in this world. The Qur'an (32:17) says, "No soul knoweth what is kept hid from them - or joy as a reward for what they used to do." Again (9/72), "God promiseth to the believers, men and women, Gardens underneath which rivulets flow, wherein they will abide - blessed dwellings in Gardens of Eden - and the pleasure of God is grander still; that is the supreme triumph." So this pleasure on His part is over and above even the Gardens of Eden. In yet another passage of the Qur'an (10/20) we read, "For those who do good is what is the best, and more (thereto)." Al-Bukhari, Muslim, etc. report that the Prophet used to refer to this verse, saying that after Paradise there would be the vision of God, the ultimate reward of the pious. As far as Paradise is concerned, an oft-quoted utterance of the Prophet Muhammad is, "God says, 'I have prepared for My pious slaves things in Paradise, the like of which no eye has ever seen, nor ear ever heard, nor even human heart (mind) ever thought of.' " As to what is beyond Paradise, Bukhari, Muslim, Tirmidhi and other great sources record an important saying of the Prophet, "When the people meriting Paradise will have entered it, God will say to them: 'Ask Me what else can I add for you.' People will wonder, having been honoured, given Paradise and saved from Hell, and will not know what to ask. Thereupon God will remove the veil, and nothing would be lovelier than gazing at the Lord." (In another version, instead of 'veil', 'hijab', 'the garb of grandeur' Rida-al-Kibriya is used.) In other words, the opportunity of contemplating God would be the highest and the real reward of the Believer, this for those who are capable of understanding and appreciating the abstract notion of the other World. It is in the light of this authoritative interpretation, one should read what the Qur'an and the Hadith unceasingly describe for the common man with regard to the joys of Paradise and the horrors of Hell (in terms which remind us of our surroundings in this world): there are gardens and rivulets or canals in Paradise, there are young and beautiful girls, there are carpets and luxurious garments, pearls, precious stones, fruits, wine, and all that man would desire. Similarly, in hell there is fire, there are serpents, boiling water and other tortures, there are parts that are extremely cold. And in spite of these sufferings, there will be no death to remove them. All this is easily explained when one thinks of the vast majority of men, of the common masses, to whom the Divine message is addressed. It is necessary to speak to everyone according to his capacity of understanding and of intelligence. One day, when the Prophet Muhammad was speaking to a company of the faithful about Paradise and its pleasures (including its flying horses), a Bedouin rose and put the question: "Will there be camels also?" The Prophet smiled and gently replied: "There will be everything that one would desire" (Ibn Hanbal and Tirmidhi). The Qur'an speaks of Paradise and Hell simply as a means of persuading the average man to lead a just life and to march in the path of truth. It attaches no importance to details, whether they describe a place or a state of things. That should not interest us either for a Muslim believes in them without asking 'how?'


Syed Mumtaz Ali Barrister & Solicitor
President, The Canadian Society of Muslims
Patron and Chief, The Islamic Institute of Civil Justice