Date: Monday 15 December 2003
Subj: Canada: Applying Shariah through Islamic arbitration.
To: World Evangelical Alliance Religious Liberty News & Analysis
From: WEA RLC Principal Researcher and Writer, Elizabeth Kendal
At a conference in Etobicoke, Ontario, Canada, in October 2003, Muslim delegates elected a 30-member council to establish the Islamic Institute of Civil Justice. The institute is classified in Islamic law as a Darul-Qada, or judicial tribunal. Its bylaws are scheduled to be drafted and approved by 31 December.
In an article by Judy Van Rhijn for the Vancouver Independent Media Center, Muslim barrister Syed Mumtaz Ali explains that in the past Canadian Muslims have been excused from applying Shariah in their legal disputes because it was impractical as there was no way to enforce decisions. However, amendments to the Arbitration Act have made it possible for Muslim committees to enforce settlements. "Now, once an arbitrator decides cases, it is final and binding," says Syed. "The parties can go to the local secular Canadian court asking that it be enforced. The court has no discretion in the matter. So, the concession given by Shariah is no longer available to us because the impracticality has been removed. In settling civil disputes, there is no choice indeed but to have an arbitration board." (Link 1)
This has raised many concerns for the religious freedom of Canada's Muslims and in particular, the rights of Canadian Muslim women.
Dr. Janet Epp Buckingham (B.A., LL.B., LL.D) is the Director, Law and Public Policy, and General Legal Counsel for the Evangelical Fellowship of Canada (EFC) Centre for Faith and Public Life. I asked her for a comment.
ANALYSIS OF SHARIAH LAW IN CANADA
Dr. Janet Epp Buckingham (EFC link 5)
10 December 2003
The Law Times newspaper announced on 25 November 2003 that several Islamic groups were in the process of forming an arbitration council in Ontario that would allow Muslims to have their disputes decided in accordance with Shariah law. Under the Arbitration Act, 1991 in Ontario, the decision of an arbitrator may be enforced by the courts. This development has raised questions and concerns.
Under the Arbitration Act, 1991, people may make an agreement to have any disputes adjudicated by binding arbitration. They can set out the qualifications of the arbitrators and even indicate a particular arbitration group to which they agree. Arbitrators are given broad powers to decide their own jurisdiction and process. They may make any remedy available to a court. Under the Act, an arbitrator's award is enforceable through the courts as though it was a court order. In general, the court will not review or overturn an arbitration decision unless there is an error of law. Considering that the purpose of the Islamic arbitration board is to apply Shariah law, rather than the law of Canada, it is an open question at this point if the courts will overturn decisions that are not in accordance with Canadian law.
The most important pre-condition of the use of the Islamic Arbitration Board is that it is voluntary. It will only have jurisdiction if the parties agree to its use. It is quite possible that if an arbitration decision is not in accordance with Canadian law and one party appeals the decision, the courts would overturn the decision. This arbitration board is being set up under the current Arbitration Act; it is not new legislation that imports Shariah law into Canadian law for any purpose. It appears, therefore, that it will only be effective if the parties agree to it.
The Law Times article itself makes reference to a previous Islamic dispute resolution board that failed because Muslim women refused to make use of it. It therefore appears that Muslim women are aware of the impact of Shariah law on them. If they refuse to agree to this arbitration board, there is no way that they can be forced to be subject to it.
Some specific questions have been posed to me:
1. Will these lead to stoning of women for adultery?
The short answer is no. Any two "persons" (which includes corporations) may have their dispute decided by arbitration. Criminal law is not enforced through arbitration.
An arbitrator or board of arbitration may give any remedy that may be given by a court. This does not include remedies such as stoning or any other kind of physical remedy such as incarceration or physical punishment. In addition, the court can substitute a different remedy for that awarded by the arbitrator.
2. Does Canada have any law that would prevent a woman from being stoned under a ruling of a Muslim arbitrator?
The short answer is yes. An arbitrator does not have jurisdiction to give this kind of remedy. If it did, it could (and would) be overturned by a court. If someone tried to stone a woman subject to an arbitration decision, that person would be subject to the criminal laws of Canada that prohibit assault and battery.
3. Will Muslim women who convert to Christianity lose their children under this arbitration?
This poses the greatest concern. If a woman agrees to arbitration under an Islamic arbitrator either as part of a pre-nuptial agreement, or any other agreement, this can only be changed under the ordinary laws of contract. This means that this agreement will likely be binding (as it is very hard to change this kind of agreement).
On the positive side, the court does have jurisdiction to overturn an arbitration decision if it is "unfair" in law to one party. The courts in Canada are very sensitive to women's rights and it seems unlikely that courts would enforce arbitration awards that give women no rights (custody or access) with respect to their children.
On 11 December, Workopolis, a Canadian Internet job site, ran an article entitled, "Islamic law in civil disputes raises questions." This article confirms that, "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."
"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.'" (Link 2)
Yet, as Dr. Janet Epp Buckingham's notes, "Considering that the purpose of the Islamic arbitration board is to apply Shariah law, rather than the law of Canada, it is an open question at this point if the courts will overturn decisions that are not in accordance with Canadian law."
Muslim lawyer Syed Mumtaz Ali says that Canadian Muslims are obliged to follow Sharia and the laws of Canada. "We have a double obligation," he says. "You don't have to be the wisest man to see there will be conflicts." (Link 3)
This is exactly the point. Canada will now have two potentially conflicting systems of law in operation. Now that Shariah has been given this legitimacy, will a Muslim (who is supposed to accept Shariah as the eternal law of Allah) dare contest the decision of a Shariah arbitrator through a secular court? Will the courts dare overturn a decision? If both Muslim parties voluntarily agree (or are "persuaded" to "voluntarily" agree) to abide by the dictates of the Shariah arbitrator and not contest the decision, do the courts have the right to intervene to preserve Canadian rights and values? The questions are endless.
MUSLIM WOMEN ANXIOUS
The Toronto Star ran an article on 12 December that noted the concern of Canada's Muslim women. "Alia Hogben, president of the Canadian Council of Muslim Women, expressed reservations about the arbitration committees. 'Who will represent the rights of women?' she asked from Kingston. 'We are gravely concerned because there are lots questions and we don't understand from the Canadian Muslim women's point why another system is being applied.' Since most Muslim women in Canada are religious, many may be persuaded to go to arbitration as part of their Islamic faith and identity, she said." (Link 4)
This concern (that Muslim women will be "persuaded" into Islamic Arbitration) is probably the most serious issue at present. This persuasion may come in the form of intense family or social pressure, or via prenuptial agreements.
In the Workopolis article (link 3) Muslim lawyer Syed Mumtaz Ali says that "Islamic family law would definitely not apply in child-custody cases," and that women may even use the tribunal to negotiate prenuptial agreements that allow them to initiate divorce proceedings without the permission of their husbands.
However, this is highly unlikely - it is difficult to imagine that the Shariah arbitrators will rule contrary to Shariah principles.
A DOOR TO SOCIAL DIVISION
This move can only open the door to social division and conflict. It will polarise Muslim and non-Muslim communities, and it will polarise the Muslim community (as Shariah does). Muslims who choose not to use the Shariah tribunals will doubtless be rejected and persecuted as rebellious or apostate. Muslims in Canada (especially Muslim women and Westernised Muslims) may find that they will lose - or be "persuaded" to abandon - their precious Canadian rights and freedoms.
- Elizabeth Kendal
1) First steps taken for Islamic arbitration board
Vancouver Independent Media Center
By Judy Van Rhijn
2) Islamic law in civil disputes raises questions
Judicial tribunal based on sharia to decide disagreements among
Ontario Muslims. By Marina Jimenez, 11 December 2003
3) Canadian Muslims Press For Setting Up Shari'a Court
OTTAWA, Canada, 29 November 2003
4) The Toronto Star, 12 Dec. 2003
New Islamic Institute set up for civil cases
System would reduce court time. Move worries Muslim women.
By Leslie Scrivener, Faith and Ethics Reporter
Go to the Toronto Star front page http://www.thestar.com and type
"Islamic institute" into the 14-day search.
5) Evangelical Fellowship of Canada
Centre for Faith and Public Life