Interview: A review of the
coordinated by Rabia Mills
Muslim Personal/Family Law Campaign
FIRST PUBLISHED AUG. 1995
The following is an interview conducted with Syed
Mumtaz Ali, President of the Canadian Society of Muslims. Insha'Allah
the reader will gain a better understanding of the Personal/Family Law
Campaign itself and the issues surrounding it.
1. What is meant by Muslim Personal/Family Law?
For Muslims, Personal/Family Law (PFL) is a key ingredient which helps
the individual and the community struggle toward harmonious equilibrium.
Muslim PFL governs fundamental aspects of individual and community affairs.
It encompasses issues affecting the personal status of people and it deals
with wills, inheritance, marriage, remarriage, marriage contracts, divorce,
maintenance, custody and maintenance of children, guardianship, etc., hence
the term Personal Law. However, in the Canadian context, to simplify matters,
it may also be referred to as Family Law.
Muslim PFL is rooted in and derived from the two most basic sources
of Islamic law--namely, the holy Qur'an and the Sunnah of the Prophet (pbuh).
Repeatedly, the Qur'an enjoins and instructs Muslims to follow the Qur'an
and the example of the holy Prophet Muhammad (pbuh). Again and again, Muslims
are informed in the Qur'an that one cannot consider oneself a Muslim (one
who submits to the command of Allah) unless one follows the guidelines,
counsel, and principles related to us through the Qur'an and the Prophet
2. Whom are you trying to reach with your Personal/Family
Law (PFL) campaign? Is it directed toward both Muslims and non-Muslims?
Quite simply, we are trying to reach Muslims, non-Muslims, and Canadian
governmental authorities at all administrative levels.
3. Why do you call this the Muslim Personal/Family
Law campaign (PFL) and what is its history? When did this campaign begin?
In accordance with the holy Qur'an and Sunnah of the Prophet Muhammad
(pbuh), we have mounted a campaign which would meet the needs of all Canadian
Muslims, because right now we cannot meet these needs through Canadian
secular law as it presently stands. We call it the 'Personal/Family Law
Campaign' because that is what it is--an effort to upgrade and achieve
Muslim Personal Law in the familial context both within the Muslim community
and in the Canadian judicial system. As to the inception and history of
our campaign, I refer you to my opening comments in A
Word from the President
4. Why are you confining your PFL campaign to family issues rather
than other aspects of the Shariah?
Our campaign for PFL addresses only a very small part of the Shariah
-- namely, the Muslim personal law dealing with family relationships. We
live in a non-Muslim country which subjects us to laws which, for the most
part, do not allow us to live our faith to the best of our ability. Confining
our campaign to those areas where the Canadian judicial system could accommodate
Muslim minority concerns is far more feasible, realistic, and practical
than other areas of the Shariah. Family relationships is just such an area,
in that while it does not make it necessary for Canadians to sacrifice
the fundamental principles upon which the country was founded, it does
enable the Canadian Muslims to have recourse to legal problem-solving based
upon the Shariah.
5. Why is the PFL so important for Muslims? Why
do Muslims need it?
As Canadian Muslims, you have a clear choice. Do you want to govern
yourself by the personal law of your own religion, or do you prefer governance
by secular Canadian family law? If you choose the latter, then you cannot
claim that you believe in Islam as a religion and a complete code of life
actualized by a Prophet who you believe to be a mercy to all. If you choose
the former (i.e., to be governed by your religion), then you must accept
the necessary consequence that you must follow a course of action that
will enable you to achieve that end. You cannot shirk from your religious
and moral duty to try for what can be achieved lawfully within the parameters
of the Canadian democratic system and constitutional legal rights.
If Canada were some sort of archaic despotic regime, then your responsibilities
would be different. But this is not the case in Canada. We believe that
among the many beautiful aspects of democracy are its capacities for change,
flexibility, fairness, and accommodation of a spectrum of possibilities
Democracy has not produced, so far, a perfect society. Instead, democracy
is a process which is dedicated to a continuous attempt to improve the
quality of life for both individuals and the collective. Part of the progressive
search for discovering better, more equitable ways of doing things is to
provide people with a variety of choices which are more suited to their
individual and collective needs.
In the Canadian context, you cannot shirk from your civil responsibility
to pitch in to bring your Canadian system a step closer to achieving that
ideal of a perfect democracy. You must use democratic methods to seek democratic
solutions to your problems, as suggested by the Canadian Society of Muslims.
This is why the PFL is so important for you as Canadian Muslims--it is
an opportunity to live your Islam to the best extent possible in the Canadian
6. Why is Muslim PFL important to all Canadians,
be they Muslim or non-Muslim? Why should Canada adopt it?
Firstly, it would be a more efficient, less costly and less burdened
system for dealing with the relatively diversified approach of Canadians
to their own family law.
Secondly, it is important for non-Muslim Canadians to carry out and
act upon their fundamental principles and ideology which is put forward
in the Canadian Charter of Rights and Freedoms. To not do so would be flagrant
hypocrisy and a denial of rights to its citizens. It would put Canada in
an awkward position on the world stage. Canada would be like a rudderless
ship, unable to steer to its proclaimed destination of treating minorities
fairly and equitably, not only according to their own Constitution, but
also according to the requirements of the United Nations Organisation.
In failing to fulfil this responsibility, Canadians would become victims
of their own rhetoric and so any progress would be lost. Therefore, I think
Canadians would want to accommodate Muslim PFL in some appropriate fashion
and thus live up to their own aspirations and strivings toward democracy.
Thirdly, Canadians as individual members of the society would not be
losing control but instead would broaden their mandate of sovereignty.
They would enhance the quality of that sovereignty, in as much as the term
'sovereignty' in relation to individuals and communities of minorities
is used in a relative rather than an abstract sense.
Lastly, by adopting Muslim PFL into the current system of law, Canadians
would gain international recognition, particularly by the United Nations,
for its exemplary fairness and practical facility toward minority rights.
7. But how can a separate system of law like Muslim
PFL coexist with current Canadian Law?
As the English author, William Blake, succinctly stated in the late
1700s, "One law for the lion and ox is oppression." With this notion in
mind, it is somewhat promising to note that several systems already exist
now -- for example, Canadian common law, Quebec Civil law, Municipal by-laws,
laws governing Aboriginal self-government on reservations, etc. Still,
to cope with the changing structure of our society, we need improvement
and fine tuning to include and address more of our minority concerns.
We would like to see a more equitable situation which includes mechanisms
for conflict resolution in order to meet the needs of all Muslims living
in Canada. It would not be a separate system of law, per se, but rather
an adjunct to current Canadian Law which incorporates and includes Muslim
concerns in a fair and just way.
The Prophet Muhammad (pbuh) in his lifetime resolved beautifully the
concerns and conflicts of non-Muslim minorities by applying Christian Law
to Christians, Jewish Law to Jews, Parsi Law to Parsis, etc. This was done
through their own respective separate judicial tribunals appointed by themselves
as separate minority groups. Thus, what the Prophet (pbuh) did in this
respect was in effect nothing but a judicial translation of an ideological
co-existence that goes hand in hand with full integrity for all minority
religious groups living within the Islamic state.
8. What changes are necessary to Canadian law to
adapt to this?
We have put forward detailed recommendations in our submission to the
Ontario Civil Justice Review Task Force The
Review of the Ontario Civil Justice System1994. For those requiring
a more detailed picture, I would recommend reading it. Chief among these
recommendations was the establishment of Islamic arbitration boards to
deal with PFL problems. We also recommended:
(a) that Marriage officers be given authority to act as Divorce officers;
(b)that disputes arising from a Muslim who fails to leave a Will be
resolved through Muslim arbitration boards;
(c) that the Unified Family Court systems be extended to the whole province;
(d) that, with uncontested divorce, the husband and wife be permitted
to waive the one-year separation requirement and that legislation be amended
(e) alternatively, that provisions relating to marriage, divorce and
intestate succession be incorporated into Ontario Law as a part only applicable
We also offered a blueprint of how Muslim PFL is incorporated in Trinidad
and Tobago. In that country, they administer Muslim PFL under the Muslim
Marriage and Divorce Act.
9. Will this be very cost-effective? How will it
benefit both the Muslim community and the Canadian system?
Yes, it could be very cost-effective. Court proceedings are very expensive
to individual users and the provincial taxpayer. If we could settle Muslim
disputes without these lengthy proceedings, then it would be more utilitarian
for both Muslims and non-Muslims. Both from a streamline and cost point
of view, what we are proposing would be less burdensome to the judicial
The Islamic Imperative
10. As an Islamic alternative to Canadian adoption, can a Muslim
living in Canada become a guardian of a child according to Muslim Law?
No. Please refer to my article 'Establishing
Guardianship...' in this Newsletter.
11. Can a Muslim living in Canada get a divorce
according to Muslim Law?
12. If a Muslim living in Canada should pass away
without leaving a Will, would his or her matters of inheritance be dealt
with according to Muslim Law?
13. If a Muslim living in Ontario should, through
disease, accident or old age, become mentally incapable of looking after
his or her affairs, would the Ontario government give his or her family
that responsibility and conduct the affairs of the incapacitated person
in accordance with Muslim PFL?
No. Unless they have arranged for power of attorney, the Ontario government,
through a government-appointed representative, could take control of that
person's financial and personal affairs.
14. What about the situation where a legally incapacitated
Muslim living in Ontario does not leave a Living Will? Would the needed
decisions be made in accordance with Muslim Law?
No. Unless his Muslim next of kin are in a position to make such decisions
on his behalf, in regard to his personal care (e.g., whether to continue
or not to continue life support systems in a critical life/ death situation).
15. What significance does this have for the Muslim
Due to these obstacles, we are not able to follow Muslim PFL in Canada
to our utmost capacity. If we prefer to disregard our religious duty to
strive for inclusion of our rights within the Canadian system, then Canadian
secular law will take precedence over the Law of Allah and His Messenger.
16. What can be done about this situation? What
practical steps can be taken by individuals and Muslims as a group toward
achieving this goal?
You can do many things. First and foremost, you can educate yourself.
Learn what your duties are in the Shariah. Learn how to best incorporate
Muslim PFL within the Canadian framework. Then you can inform those around
you about Muslim minority concerns. You can inform other Muslim groups
about the necessity to lend their support to the Canadian Society of Muslims.
For example, different Muslim organizations may have different aims and
objectives, but they could all come together to form a unified (and strong)
voice for this one struggle and common cause--one single issue.
The Canadian Society of Muslims has undertaken to lobby politicians
and the judicial as well as the executive arms of government and also to
inform the media regularly. Furthermore, the need for Muslim PFL for the
younger generation is of great consequence. You can write to the Canadian
Society of Muslims with comments and suggestions. You can help the Canadian
Society of Muslims with letters of support. We are seeking methods to finance
such projects and to establish resources to carry out research. Also, if
you have done any study or work in this area, within Canada or in other
countries, we could greatly benefit from your experience and helpful hints.
The one thing you must NOT do is nothing!
17. What is the difference between mediation and
arbitration? Which best suits a Muslim's needs?
With mediation, a third party intervenes between parties in a dispute
to bring about an agreement or reconciliation. The mediator does this by
encouraging both parties to discuss their conflicts openly. The presiding
mediator mainly stands on the sidelines, so to speak, in that he tries
not to interfere too much in the presentation and discussion of their case.
With arbitration, the third party (arbitrator) makes an informed decision
in order to settle a dispute. The arbitrator acts like a judge, and can
and does interrupt and direct the proceedings as the need occurs. The arbitrator
does not stand on the sidelines as a mediator does. An arbitrator would
take the initiative to make rulings and make a final decision after the
case has been presented, whereas in the case of mediation, the parties
are encouraged by the mediator to bring about a compromise solution by
themselves. The mediator only formalizes that compromised settlement of
the dispute and then submits it to the court for final approval.
From the point of view of the Canadian Society of Muslims and our campaign
goals, mediation is a toothless form of conflict resolution because it
still does not address our needs for legislation to enact Muslim PFL within
the Canadian domain.
Arbitration has more bite and is more effectual. Please see my opening
comments to this Newsletter for my reasons for arbitration as the preferred
method for Muslim PFL conflict resolution. It should be pointed out, however,
that even under the Muslim PFL scenario, mediation is a preferred vehicle
for the purposes of bringing about a reconciliation between the two parties
in order to avoid the undesirable steps of taking up divorce proceedings.
For this limited purpose, mediation is appropriate.
18. Would it be obligatory for all Canadian Muslims to accede to
PFL requirements if the Muslim PFL were accommodated by way of adaptation
or inclusion in some form or the other into the Canadian judicial system?
Those Muslims who would prefer to be governed by secular Canadian family
law may do so. It would be more preferable, however, for Muslims to choose
governance by Muslim PFL for reasons of conscience.
19. What if both parties cannot agree to be governed
by PFL-- say, in a divorce between a Muslim male and a Christian female?
Both parties would have to agree to Muslim arbitration or the case would
be put before the regular Canadian courts. Due to the all-inclusive nature
of religion, there is a potential for conflict when one set of practices
faces opposition to another set of practices. This is why we insist that
implementation of Muslim PFL (in cooperation with the existing judicial
system) be on a voluntary basis. No one will be affected by such a system
except those Muslims who wish this to be the case.
20. What criteria, then, would one have to meet
to qualify for governance by PFL?
One would have to be a Canadian Muslim and would have to give prior
consent, or put him or herself on a register of people consenting (beforehand)
to be governed by Muslim PFL. In the hypothetical case given above, the
Christian female could choose to waive her rights to secular Canadian law
only if she chooses to and only if she were made aware and understood the
consequences of such action. The court-appointed arbitrator could make
this clear to her before she agrees to Muslim PFL. This is only a what-if
scenario. It remains to be seen to what extent the Canadian judicial system
will address our concerns.
21. Who will form this arbitration board, a panel or an individual,
and what sort of qualifications and experience will they hold?
Ideally, a panel of specialists would be necessary. Such a roster would
represent the cream of the crop of competence and expertise. They would
consist of persons selected from (a) the bar (i.e., lawyers or retired
judges) with required qualifications and experience at the bar or the bench;
(b) religious scholars from the Muslim community with proper qualifications
and accreditation; and (c) private arbitrators accredited by the governing
licensing organization--or even one sole arbitrator if he or she has the
qualifications of all three categories.
22. It is very easy to see how an arbitrator would
be very useful in cases of divorce. What about cases of (a) adoption, (b)
marriage, (c) inheritance and wills, and (d) substitute decisions (i.e.,
powers of attorney), etc.?
(a) If a Muslim would choose to be a guardian of a child, the arbitration
board could provide a ruling on how they could achieve that in the Canadian
legal context and within the parameters of Muslim PFL. (b) For marriage
contracts, Islamic arbitration boards would, by their authority through
their precedence-setting decisions, provide the stamp of legitimacy to
such contracts. (c) If a person should die without leaving a will, Muslim
arbitration could provide a binding legal ruling which is according to
Muslim Law. (d) If a Muslim were to become incapable of conducting his
affairs, either financially or physically, then substitute decisions could
be provided by arbitration boards in accordance with the provisions of
the Muslim Law.
23. How will arbitration be enforced? Will there
be checks and balances? For example, what if a person decides to opt out
of arbitration after initially agreeing to it because of his feeling that
he would get a more profitable decision through Canadian courts-- say,
in a divorce case?
There would be built-in safeguards to ensure that there would be no
conflict with secular law. For example, disputes would first go to secular
court. If both parties agree, before filing a Statement of Defence, to
being governed by Muslim PFL, then the court would hand them over to an
arbitration board for a final decision, a binding ruling. That ruling would
be final and would not be subject to the approval by secular court in the
same manner as would be the case in mediation proceedings.
Once the parties have agreed to be governed by Muslim PFL, then they
will be committed to it by their prior consent. As a consequence, on religious
grounds, a Muslim who would choose to opt out at this stage, for reasons
of convenience would be guilty of a far greater crime than a mere breach
of contract--and this could be tantamount to blasphemy-apostasy. The Qur'an
(7:2) is quite explicit in regard to the revealed law being the root-source
of all activities:
Follow that which is sent down unto you [i.e., the law] from your
Lord, and follow no protecting friends beside Him.
24. How much authority will they have? Will their
recommendations be binding?
The arbitration award (decision/ruling), once rendered, would be filed
with the court in which the matter commenced. This will enable it to be
deemed to be a judgement of that court, and as such it would also be appealable
as a judgement of that court. In other words, yes, their decisions would
be binding. Their authority would be similar to, if not the same as, secular
25. Who will pay for this?
The parties to the dispute would pay the fees for arbitration.
26. There are different schools of Muslim Law.
How would your proposed Muslim arbitration board reconcile them?
The arbitrators would arrive at their decisions based upon applying
whatever school of Law the individual happens to follow. There are four
schools of Sunni thought, for example. If the parties involved belong to
one of those schools, then the law of that particular school would be applied.
Similarly, if the parties involved belong to the Shia sect, then the Shia
Law would be applied. It is just as simple as that!
27. Do you think your campaign is realistic?
It is supra realistic because it is inclusive and not exclusive. When
people are marginalized by their faith in a country which only pays lip
service to the rhetoric of democracy and freedom, then this undermines
and upsets the balance of the whole country in so far as the equilibrium
of amicable coexistence is concerned. One might argue that, in many ways,
Islamic PFL is more flexible, accessible, simple and progressive than are
its Canadian counterparts. Canada would not fall apart or into an abyss
of chaos or legalized anarchy if the Canadian government permitted Muslims
to control their own affairs in the realm of Muslim PFL. Claims of tolerance
and coexistence do amount to something meaningful only if they are put
into practice. Proof of the pudding is in the eating, as the expression
goes. To continue our culinary metaphor, nothing short of a judicial translation
of this ideological coexistence can successfully lay the claim to be the
sufficient proof of eating the pudding of minority equanimity!
28. Polygamy is a divisive issue between non-Muslims
and Muslims. Where do you stand on this issue?
I stand on the Shariah which states that a Muslim living in a
non-Muslim country must obey Muslim Law to every extent possible, and that
we must also adhere to the laws of the host country. Therefore, we accede
to the Canadian Law on this point without accepting its superiority or
supremacy over Muslim Law.
29. What sort of resistance are you encountering
from non-Muslims and Muslims?
To meet the needs of all Muslims living in Canada we've conducted a
comprehensive campaign which includes, among other things, an open dialogue.
We invite both Muslims and non-Muslims to communicate their concerns to
us. This will ensure that we express and exchange our views through such
a dialogue on matters which affect them most. Progress by its very nature
is slow but sure. Resistance occurs when communication lines become closed
or clogged up and stereotyping prevails. Once all parties concerned realize
that we as Muslims are not a threat, but instead desire peaceful coexistence
in harmony with all, then Insha'Allah doors will begin to open.
30. Will that be soon?