Islamic law in civil disputes raises questions [Canada opts for Sharia]

toronto globe and mail ^ | 12/11/3

[NativeNewYorker]

A group of Canadian Muslims has established a judicial tribunal that will implement the use of sharia, or Islamic law, in Ontario to resolve marital disagreements and other civil disputes, and make decisions.

Under Ontario law, the courts must uphold the agreements as long as they are voluntary and negotiated through an arbitrator. The courts will not uphold the agreements if they violate Canada's Charter of Rights and Freedoms.

While some Muslims welcome the initiative as a less costly, private and more expedient way to address civil disputes, others wonder how sharia, a body of law based on religious principles, will be interpreted in Ontario and whether it is inherently biased in favour of men.

For example, Islamic family law dictates that male heirs receive a greater share of an inheritance than female heirs; that husbands, not wives, may initiate divorce proceedings; and that in divorce cases, fathers are generally awarded custody of daughters who have reached the age of puberty.

Tarek Fatah, with the Muslim Canadian Congress, applauds the Islamic judicial initiative in theory -- but wonders whether it would cause more divisiveness in the community. "Which interpretation of Islamic family law will be used? In a society like Canada, equality is based on common law," he said. "I also worry that this idea will become the whipping post for all right-wing bigots. A community that is already feeling bewildered will face another set of criticisms."

However, Syed Mumtaz Ali, a retired Muslim lawyer who spearheaded the initiative, believes it will serve Muslims well and save them time and money. The newly formed Islamic Institute of Civil Justice will appoint and train arbitrators -- imams and religious scholars -- to resolve civil disputes. If one party reneges on the agreement, the other party can take it to court to be enforced. The province's arbitration act requires the courts to uphold agreements negotiated through an arbitrator, although not if they are "unreasonable" or in violation of the Charter.

Mr. Mumtaz Ali, who hopes some of the arbitrators will be women, said Muslims are obliged to follow sharia, but are also required to obey the laws of the country in which they live. "Islamic law obliges Muslims to follow local law, and Islamic law where possible. Under Ontario's Arbitration Act, Muslims will be able to settle disputes in matters of contracts, divorce and inheritance privately with the help of arbitrators," he said.

Mr. Mumtaz Ali said Islamic family law would definitely not apply in child-custody cases: "We cannot use that aspect because Canadian law is very sensitive to the interests of the child and the courts must decide custody."

He also acknowledged that inheritance and divorce rulings under Islamic law tend to favour men, for historical reasons. "Brothers and sons always get more. But it is because under the Islamic system, the man has the duty and responsibility to look after the woman," he said.

Women may use the tribunal to negotiate prenuptial agreements that allow them to initiate divorce proceedings without the permission of their husbands: "They are in the driver's seat before they marry," Mr. Mumtaz Ali said.

Some Muslims have already been using arbitrators to reach agreements under sharia. The new tribunal will formalize the process.

Interpretation of sharia varies widely even among Muslim nations, ranging from the literal interpretation in Nigeria that stoning is a punishment for adultery to debates in India about the application of Muslim family law. Some critics in India believe that Muslims should be subject to the same laws as are Hindus, while others charge that Muslim family law discriminates against women.

Mr. Mumdaz Ali said the Islamic Institute of Civil Justice has about 50 members, including at least 10 women. "We will incorporate and then the members will decide how to regulate the conduct and appointment of the arbitrators and what their training should be. The arbitrators should be people well-versed in Islamic law as well as Canadian law."

He hopes the institute will also operate other ventures, including shelters for abused women and men, mental-health clinics, libraries and other resource centres.

Under Ontario's Arbitration Act, people enter into arbitration voluntarily, noted Brendan Crawley, a spokesman for the Ontario Ministry of the Attorney General. "People can use any arbitrator they want and can use a religious framework if it is mutually acceptable," he said. "The Charter of Rights is the supreme law of Canada and the Arbitration Act is subject to it. If the award is not compatible with Canadian law, then the court will not enforce it. You can't agree to violate Canadian law."