December 22, 2004
By Khalid Hasan
The Daily Times,
WASHINGTON: A battle between progressive and conservative Muslim groups isunderway in the Canadian province of Ontario where the latter are demandinglegal cover for arbitration of disputes under Sharia law.The move is bitterly opposed by the Muslim Canadian Congress.
Tarek Fatah, one of its founding members and a leading voice in Canada for progressiveIslam, said were arbitration under Sharia to become law, it would be a”Christmas gift to the Mullahs of Iran and Saudi Arabia who will berejoicing this decision and using it to validate their own oppressivegovernments.”
He said the recommendation that Sharia become law governing arbitrationamong Muslims in Ontario was given by a former Canadian politician Ms MarionBoyd in a 150-page report that amounted to “succumbing to pressures from themost right-wing religious conservatives in Canada.” He said, “On the coldest day of the year, she has thrown a wet blanket over the hopes of millions ofMuslims worldwide who are struggling to free themselves from religious oppression and misogyny being practised in the name of Islam by using Sharia.”
He called the move “racist and unconstitutional,” stressing thatthe Arbitration Act should not continue to allow disputes to be arbitratedusing religious law.The Muslim Canadian Congress said in a statement that it “demands that theOntario government reject Marion Boyd’s recommendation and refer the matterof Sharia-based Arbitration to the Ontario Court of Appeal.
Such a referenceshould ask the Court to determine whether the Arbitration Act confersjurisdiction, outside the Family Law legislation in disputes of property,children, inheritance and estates in the family context. And, if it does,whether it is constitutional.”
Tarek Fatah told Daily Times in a phone interview, “Behind the guise of religious tolerance and accommodation, the Muslim community is facing discriminatory ghettoisation and marginalisation. Establishing a substandard multi-tiered judicial process in matters of family law, is racist and unconstitutional.
The Muslim Canadian Congress feels that authorising andgiving an official stamp of approval to Sharia-based tribunals will deprivethe Muslim community of its share in Canadian society.” He said in itssubmission to Ms Boyd last August, the Congress had stated that by placingthe Muslim community “out of sight” the government only plays into the handsof the extremist political agenda of a certain sector of Muslim Canadians who are proponents of “Muslim Law”, an uncodified system, much of which is antithetical to Islam and the Canadian Constitution.
Furthermore, it plays equally into the hands of the intolerant and otherwise racist segments ofCanadian non-Muslim society who want nothing better than to exclude Muslims from the mainstream.
In her report, Ms Barry also called for new safeguards to protect the rightsof women, while recommending that “Muslim principles” should be considered an acceptable method of religious arbitration as long as they do not violateCanadian law.
She was asked by the Ontario provincial government to reviewthe 1991 Arbitration Act and assess whether a plan by the Islamic Institute for Civil Justice to use the guiding principles of their faith in settlingmarital and inheritance disputes should be halted.
Catholics and Jews already have made use of the act, which is intended as a way of avoidingcostly court fights when both parties to a dispute agree to do so. Adivorcing couple could use the act to decide on a division of property.
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. She 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 added.
Ms Boyd reacted to the criticism by asserting that the term”Sharia” is not what is being proposed by the Islamic Institute for CivilJustice, adding that the 1,400-year-old set of rules and laws covers criminal and civil matters and is often incompatible with Canadian law.
“We’re being very clear, this is not Sharia law. This is Muslim religious principles within Canadian law,” she pointed out. Although some critics are firmly opposed to the use of the Arbitration Act by any religious group, she said she couldn’t “in good conscience” tell the government to end it because “it would set back family law by 30 years.”
She said, “It’s a recognitionthat (Sharia arbitrations) are already happening – the first one here was in1982. But there is no way to scrutinize them. “If they stay underground,Muslim women will be more vulnerable.”
Syed Mumtaz Ali, a lawyer for the Islamic Institute for Civil Justice, expressed delight with the Boyd findings and claimed that many of the 46 recommendations for strengthening the Arbitration Act had come 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 a newspaper interview, adding that while Sharia is a misnomer in terms of the type of family disputes at issue, it is the term most people recognise and associate with Muslim beliefs being applied through the law.
Muslim principles, he argued, require Muslims to believe in one God and to commit to obeying the law in the country where they live. He said the advantage of Sharia-type arbitration is that participants are compelled by their religious beliefs to uphold the law, an extra onus that will make for fair treatment of all parties in the dispute.”