Shariah in Canada: A Muslim Mum's Open Letter to the Premier of Ontario

Buyer Beware?
Since when was justice a consumer product?
A Muslim Woman's Open Letter to the Premier of Ontario

By Rizwana Jafri
MuslimWakeUp!
http://tinyurl.com/5p9zw

The Honourable Dalton McGuinty,
Premier
Government of Ontario.

Dear Premier McGuinty:

Please allow me to introduce myself. My name is Rizwana Jafri, a Muslim mother of two sons, Vice Principal of a Toronto High School, and President of the Muslim Canadian Congress, in which capacity I am writing to you.

As you are aware the use of religious laws to settle family disputes through binding arbitration--as a substitute to the Ontario family law court system--has deeply divided the Muslim community and caused serious concern among women's groups and children's advocates.

For the record, the Muslim Canadian Congress is opposed to all religious courts and tribunals that trespass the public domain. Whether they are Rabbinical or Christian courts, Shariah-based Arbitration tribunals or any other religious-based quasi-judicial body, we believe that they cannot, and should not, be allowed to substitute our court and judicial system; a system based on laws created by parliamentarians like yourself, who are accountable to the electorate.

Recently, much to our shock, former Attorney General Marion Boyd recommended this practise not only be continued, but that "Muslim principles," which she failed to define, be allowed as a substitute to the Family Law Act. When asked to explain what parts of the Family Law Act were in conflict with "Muslim Principles," she refused to elaborate and evaded this question repeatedly.

As Muslims we believe that what Ms Boyd is recommending under the cover of "Muslim principles" is in fact "Shariah by stealth."

We believe Marion Boyd's report reflects her lack of understanding of the issues; the complexity of the religion; and the diversity of the Muslim communities. In addition, we believe that by invoking the "Buyer Beware" principle in matters of judiciary, Marion Boyd has reduced justice to a mere consumer commodity. This is antithetical to both Islamic and Canadian values, which are in essence one and the same. Justice is not a mere consumer product and citizens are more than retail consumers.

We also believe she had a serious conflict of interest in reviewing the very law that she had a hand in creating, as member of the Bob Rae cabinet, and should have refused to pass judgement on her own work.

I am asking you to please intervene and stop the implementation of the Marion Boyd Report, which also introduces an unprecedented attempt to privatise Ontario's Family Law and place it into the hands of private practitioners who have already started marketing their services as for-profit religious judges masquerading as alternate justice providers.

We are not alone in our opposition to introduction of Shariah into the Canadian judicial system. Many Muslim academics have voiced their concern as have some mosques and the Canadian Council of Muslim Women.

Professor Omid Safi who teaches Islamic Studies at Colgate University in New York has written:
"The use of religious law as a substitute for laws created by parliament, and the establishment of a multi-tier legal system - one for average Canadians and one for Muslim Canadians, and others for Catholic or Jewish Canadians - is not only unjust, but also detrimental to the well being of all Canadian citizens."

Professor Safi, who is also Chair of the New York based Progressive Muslim Union of North America, adds another dimension to this controversy. He writes:
"We are also alarmed at the prospects of repressive Muslim governments around the world pointing to Canada, and the implementation of "shari’a" within Canada, as a justification for their oppressive legal systems. This is not a comment on Islamic jurisprudence as a whole, but rather on the repressive interpretations of shari’a found in those countries. It is unrealistic to think that the ayatollahs of Iran, the proponents of Wahabism in Saudi Arabia and other countries will not use this to promote the viability of their oppressive visions."

One of Islam's leading scholars in Europe, Professor Tariq Ramadan of the University of Fribourg in Switzerland told an Egyptian magazine there was no need for Canadian Muslims to set up their own Shariah courts, saying they are "not necessary" and that demanding such courts "is another example of lack of creativity" among Muslims.

Here in Toronto, Professor Taj Hashmi, who teaches at the Centre for Asian Research in York University, has gone a step further and urged ordinary Canadians to speak out and oppose the proposal. He writes:
"The Government alone cannot stop the formation of the Sharia Board; civil society in general and liberal Muslims in particular should come forward to stop this vice, which is neither Islamic nor Canadian in character and spirit."

Some prominent Canadians have also voiced their concern. Canada's first Muslim member of the Senate, Senator Mobina Jaffer has expressed her opposition to the Marion Boyd report while former Deputy Prime Minister Sheila Copps has labelled Marion Boyd's proposal as "hogwash. Ms. Copps writes:
"The real question untouched in the Boyd report is why civil society would agree to religious arbitration -- Muslim, Jewish, Christian or anything else -- in the first place. Have we really done all we can to examine families' experiences since such processes were given the green light in Ontario, including how many arbitrations have resulted in decisions accepted by economic dependents with few real choices? Or is this really about finding a quick solution to the backlog in our courts?"

Sheila Copps has hit the nail on the head in asking the tough question. Is this about multiculturalism or is it about cost-cutting and privatisation?

We believe that mosques, churches, temples and synagogues have an important role to play in the community, but their role should be restricted to mediation and reconciliation, not interfering with the Canadian justice system and running a parallel private-sector judiciary with self-styled religious judges for hire.

But most importantly, we believe the 1991 amendment to the Arbitration Act that allowed family disputes to be settled outside the family Law Act, was unconstitutional.

This is why we are asking your government to refer the matter to the Ontario Court of Appeal to determine:

• Whether the Arbitration Act confers jurisdiction, outside the Family Law Act, to resolve disputes of property, children, inheritance and estates in the family context.
• If the Arbitration Act does confer such jurisdiction, whether this is constitutional.

I hope you will give serious thought to the concerns I have raised. The decision you and your cabinet will make will have a profound long-term impact on society. Just as you stood up for public education despite immense pressures from all religious lobbies, we hope that you will take the courageous decision to ensure that one law exists for all Ontarians, irrespective of the religion or race. Only then can we hope for a civic society where cohesiveness takes precedence over divisiveness.

Our position is not against religion. On the contrary, we stand for the constitutional guarantee of freedom of religion. However, freedom of religion does not mean that we dilute laws and strengthen the power of Rabbis, Imams and Priests over their communities; specially the most vulnerable.

Toronto Star story on Marion Boyd's Shariah Report: Muslim critics say, it is 'betrayal' of women

Shariah in Canada
Report called 'betrayal' of women
Proposal backs use of Islamic principles in settling disputes
Ontario heading in 'dangerous direction,' opponents say

By CAROLINE MALLAN
Toronto Star
http://www.thestar.com

A proposal to allow the use of Islamic principles in settling familydisputes in Ontario has been met with outrage by opponents of the plan.Former NDP attorney-general Marion Boyd made the recommendation yesterday ina 150-page report in which she also called for new safeguards to protect therights of women.But she ultimately concluded that "Muslim principles" should be consideredan acceptable method of religious arbitration as long as they do not violateCanadian law.

Boyd was asked by the provincial government to review the 1991 ArbitrationAct and assess whether a plan by the Islamic Institute for Civil Justice touse the guiding principles of their faith in settling marital andinheritance disputes should be halted.

Catholics and Jews already have madeuse of the act, which is intended as a way of avoiding costly court fightswhen both parties to a dispute agree to do so. A divorcing couple could usethe act to decide on a division of property, for example.

Opponents were quick to condemn Boyd's report, calling it "naive" and abetrayal of women.Marilou McPhedran, counsel for the Canadian Council of Muslim Women,labelled Boyd's report "naive" in its assumptions that Muslim women wouldhave the same choices as other women.

McPhedran said many women who could beaffected are recent immigrants who might not speak English and are not givena true choice in how a divorce might be settled. "This is a dangerousdirection. It is the thin edge of the wedge. This has to be stopped now,"she said.

Tarek Fatah of the Muslim Canadian Congress said Boyd has lent credibilityto a system of law that has disadvantaged women in Muslim countries forcenturies."Marion Boyd today has given legitimacy and credibility to the right-wingracists who fundamentally are against equal rights for men and women," Fatah said of the endorsement of some form of sharia law.

"The proponents of sharia in Canada are not concerned about family law, they are concernedabout bringing justification for introducing sharia and legitimizing it."But Boyd repeatedly stressed that the term "sharia" is not what is being proposed by the Islamic Institute for Civil Justice, adding the1,400-year-old set of rules and laws covers criminal and civil matters andis often incompatible with Canadian law."We're being very clear, this is not sharia law," Boyd told a newsconference.

"This is Muslim religious principles within Canadian law." But, she conceded, in all cases of arbitration, whether religious or not, itis up to the people involved to stand up for their own rights. "It's a bit of consumer beware that I think is very real in this area."

Boyd also said in an interview later, "I'm not naïve enough to think this is the end ofit."

Although some critics are firmly opposed to the use of the Arbitration Actby any religious group, she said she couldn't "in good conscience" tell thegovernment to end it because "it would set back family law by 30 years."But anyone who interprets the report as giving priority to multiculturalismover female equality is "misreading" it: "It's a recognition that (shariaarbitrations) are already happening - the first one here was in 1982.

Butthere is no way to scrutinize them. "If they stay underground, Muslim womenwill be more vulnerable."Boyd also told the news conference she believes strengthening the existing system of arbitration, including mandating domestic violence awarenesstraining for arbitrators, will help reduce the number of informal,religious-based family dispute resolutions that happen without anyoversight.

Critics of any use of sharia law in Canada point to examples of what someMuslim societies consider to be acceptable levels of spousal support when amarriage ends - anywhere from three months to a year's worth of support -compared to a Canadian norm of much more long-term support for a formerspouse and children.

"I think Boyd made up her mind before she even started because she hasn'ttaken into consideration anything we said. It's like she didn't hear us,"said Alia Hogben, executive director of the 900-member Canadian Council ofMuslim Women.Boyd's report recommends a greater right of appeal for arbitrations, butputs the onus on Muslim women to take that step, said Hogben, "but how wouldmany women have the wherewithal to do that?"

"We just hope that the attorney-general freezes the report until a properinvestigation is done," said Homa Arjomand, head of the InternationalCampaign to Stop Sharia Courts in Canada. The campaign argued that while, technically, Muslim women will have accessto Canadian laws and court, and the legal system will undoubtedly rejectoppressive decisions, "the reality is that most women (will) be coercedsocially, economically or psychologically" into participating in shariatribunals.

Boyd's report calls on arbitrators to affirm that they have interviewed thecouple in dispute separately to determine that both parties areparticipating of their own free will and to rule out any possible domesticviolence issues.All of the groups opposed to any use of sharia said they will aggressivelypress the Liberal government and Attorney-General Michael Bryant to rejectBoyd's findings and put an end to arbitrations that rely on Muslim laws.

But Syed Mumtaz Ali, a lawyer for the Islamic Institute for Civil Justice,said he was "delighted" with Boyd's findings and added that many of the 46recommendations for strengthening the Arbitration Act came from him."It's a model for the whole world to see how sharia law can be used in aWestern society," Mumtaz Ali said in an interview. He added that whilesharia is a misnomer in terms of the type of family disputes at issue, he said it is the term most people recognize and associate with Muslim beliefsbeing applied through the law.Mumtaz Ali said Muslim principles require Muslims to believe in one God andto commit to obeying the law in the country where they live.

He said theadvantage of sharia-type arbitration is that participants are compelled bytheir religious beliefs to uphold the law, an extra onus that will make forfair treatment of all parties in the dispute."Canadian laws prevail, sharia law takes a backseat," he said of the plan heenvisions for arbitration.He said many people in the community are anxious to proceed withsharia-based arbitration and plans have been in limbo awaiting Boyd'sreport.

Len Rudner of the Canadian Jewish Congress said the group felt Boyd struck afair balance between the needs of the individuals and those of thecommunity. "She appears to have done a good job of that," he said.

Montreal's Egyptian-born Professor Nadia Khouri writes: "Keep mosque and state separate"

September 21, 2004

Keep mosque and state separate

By Nadia Khouri
National Post
http://www.nationalpost.com

The irony in the Ontario government's decision to consider allowing anIslamic shariah court is that many Muslims themselves oppose the idea.Muslims, like people of other faiths, routinely consult their spiritual leaders on a variety of matters.

It's an informal affair. But granting ashariah court the power to enforce binding arbitration means that those whoinnocently seek consultations with clerics may become trapped in legalities,with religious specialists settling disputes according to the law of divine command -- passing judgment according to what the faithful must do to please God, not what the state must do to protect citizens.

Since shariah is a comprehensive law covering the minutest details of publicand private life, many Muslims are concerned by the notion of Islamicscholars setting norms of behaviour for them, with the imprimatur of theirattorney general.

The Canadian Council of Muslim Women has urged fellow Canadians to fight theAct. Homa Arjomand, a former refugee from Iran's Islamic regime and aco-ordinator of the active International Campaign Against Shariah Court inCanada, has been warning in several forums that these tribunals will compelabused women to stay in abusive relationships. After all, Surah 4:34 in theKoran, a basis for shariah, clearly says: "Good women are obedient, guardingin secret that which God has guarded.

As for those from whom you fear disobedience, admonish them, then banish them to beds apart and strikethem."Many Muslims resent such separate-but-equal moral isolationism.

A strong denunciation came from Tarek Fatah, a founder of The Muslim CanadianCongress, who called the use of religious laws to settle legal matters racist. "When somebody tolerates my mistakes ... this is the racism of lowerexpectations."

The idea that all Muslims are bound by shariah is a misconception forced onthe public by Islamists. Nothing could be more attractive to them than theidea of legally binding Muslims to shariah via arbitration. In other nationswhere shariah is enforced -- whether as the state law, as in Saudi Arabia orIran, or as part of a dual system of religious and secular laws, as in Egypt or Jordan -- open opposition by reformers and secularists condemns them topersecution, imprisonment or death.Shariah courts have been abused in other countries and could be abused here.

How would a shariah court, for example, treat an accusation of apostasy --which, if found true, would mean the apostate could not be married to aMuslim and a divorce would be necessary?Would a shariah court uphold freedom of conscience and belief, guaranteedunder section 2 of the Canadian Charter of Rights and Freedoms, a principleat odds with a strict reading of shariah? Would it force the accused topublicly recant, hence going against the Charter? Would it counsel divorce?

Though polygamy is illegal in many Muslim countries, it is not invalid undershariah. A man can keep a wife in Canada and other ones in another countrywithout the Canadian wife, his Canadian-born children and Canadianauthorities being able to intervene in matters of divorce, alimony andcustody -- all of which are dealt with in different ways by the four Sunniand the two Shia schools of Islamic law.

Then there is the issue of Islam's conception of contractual, temporarymarriage "for pleasure," whose character is extensively codified especiallyby the Jaafari Shia school. How would Canadian family law interpret"temporary marriage" for the "temporary wife" who may be left with permanentchildren?Multiculturalism cannot be interpreted in a manner that trumps Charterequality guarantees and the universal human rights that underlie them. Humanrights are vested in the individual, not the group.

When special powers aregranted to groups rather than to individuals, conflicts between the groups'leaders and their members are sure to arise.Who is trying to persuade the Attorney General that these courts are thesuitable venues for arbitrating disputes among Muslims? A group of shariahadvocates led by Syed Mumtaz Ali of The Islamic Institute of Civil Justice.

For two decades, it has been quietly lobbying successive Ontario governmentsto enshrine in arbitration law an Islamic Court, known as Darul Qada. Theview of Canada from Darul Qada's Web site is that of a judicial wastelandwhere, we are told, "Muslim minorities are like wandering Bedouins," with nosay in the laws of the land.

The "wandering Bedouins" have wasted no time rebuttng Darul Qada'spresumptions and opposing a shariah court. Their concerns should be heeded.
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Nadia Khouri is an Egyptian-born Canadian who teaches humanities at DawsonCollege.