Shariah Tribunals

by LYNDA HURST

An excerpt from the May 22, 2004 issue of The Toronto Star entitled "Ontario Sharia Tribunals Assailed -- Women fighting use of Islamic law -- But backers say rights protected"
... The whole contentious idea of private sharia courts belongs to Mumtaz Ali, a retired Indian-born lawyer, president of the Canadian Society of Muslims and founder of the Islamic Institute of Civil Justice.

Ali has been working since 1991 to find a way for Muslims to fully practise their faith in secular Canada, to be able to follow the sharia, which is required if they are to be devout.

"Living by religious law is our whole life," he says. In facilitating that, "the Ontario government is the most enlightened in the world. This is the multiculturalism of my friend Pierre Trudeau."

The existence of sects with varying interpretations of Islamic law isn't a concern because the model to be used is a "Canadianized sharia," he says.

"It will be a watered-down sharia, not 100 per cent sharia. Only those provisions that agree with Canadian laws will be used. If there is a conflict between the two, Canadian law will prevail."

(To critics, his remarks are confusingly at odds with an article written for the Calgary Herald in January by Syed Soharwardy, a founding member of the Islamic Institute, in which he wrote: "Sharia cannot be customized for specific countries. These universal, divine laws are for all people of all countries for all times.")

Yes, Ali is aware that many Muslim women fear females will not be treated equally. They are wrong, he says: "That issue will not arise."

He thinks they're afraid because they don't understand how the tribunals will work; indeed, few people do because details haven't been released.

Ali says there will usually be two arbitrators hearing a dispute; one an expert on Canadian marriage, divorce and family laws, the other a sharia expert. If necessary, a third will act as umpire. They all will have access to a raft of Islamic scholars.

Initially, arbitrators will come from a panel of about 15 lay people, not all of whom will be Muslim. One, he says, is a retired Ontario judge and non-Muslim. Few imams will be used, however, because "they are not qualified academically."

Most will have taken a course on the arbitration process (which differs from mediation, in which parties reach their own agreement). Ali says this training accounts for the delay in getting the tribunals going.

Husbands and wives will each have their own lawyer in attendance, he stresses, and arbitrators will be duty-bound to ensure no party is being pressured to take part or to accept a ruling.

In any event, "that does not happen here," he says. "It happens in Egypt, in other countries, but not Canada. No one will be pressured. People think we're bringing in Taliban law. Not so. No one is going to be stoned to death or have their hands cut off."

As he notes, "the Charter of Rights doesn't allow for cruel and unusual punishment."

After speaking to a Muslim women's group in Edmonton this week, Ali was asked why women should go near a sharia arbitration when their rights are covered by Canadian courts. "To be a good Muslim you must," he told them.

But it is also in women's own interests, he says. Just as Canadian law allows for prenuptial agreements, sharia offers marriage contracts. As an example, he says a woman could ask for the right of divorce normally belonging only to men to be transferred to her. Sharia also provides for her dowry to be returned to her.

Critics are welcome to monitor any arbitration appearing as "a friend of the court" if they think the rights of women will be violated, he adds.

This will come as news to the Council of Muslim Women, which was not informed that the arbitration tribunals were in the works, not asked for its views, nor to make recommendations. As far as it knows, the arbitrations will be private.

"It would have been in Mumtaz Ali's interest to consult women's groups," says Annie Bunting, director of York University's law and society department.

"Yes, Canadian laws will trump the sharia, on the books at least. But what impact will these tribunals have on women's lives?"

That's the question being asked by Muslim women living in Canada a decade or more. A Halifax woman called Alia Hogben to say that if the tribunals come to pass, she will no longer consider herself a Muslim.

Homa Arjomand no longer does, not after what happened to the women of Iran and almost to her under its draconian regime. She believes passionately that state and religion must be kept separate despite Canada's well-intentioned allegiance to multiculturalism.

"Your beliefs should stay in your home, in your mosque, your church, your temple. We should remain a secular country with no separate rules for some groups, not when they discriminate against women."