Date: Monday 26 January 2004
Subj: Islamisation, extremism and the Christians of Pakistan
To: World Evangelical Alliance Religious Liberty News & Analysis
From: WEA RLC Principal Researcher and Writer, Elizabeth Kendal
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ISLAMISATION, EXTREMISM AND THE CHRISTIANS OF PAKISTAN
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QUID PRO QUO
On 6 June 2003, the WEA RLC produced a News & Analysis posting entitled "Pakistan: Islamisation or dictatorship or both?" That posting examined the relationship between Pakistan's President Musharraf and the Majlis Muttahida-e-Amal (MMA) - an alliance of six anti-West, pro-Taliban, pro-sharia, Islamic parties that hold the balance of power in Pakistan.
In August 2002, Musharraf amended the Constitution by decree (the Legal Framework Order) to give himself vastly increased powers. The October 2002 elections however, resulted in a hung parliament. Musharraf's military-backed Pakistan Muslim League-Quid-e-Azam (PML-Q) won the most seats, but all opposition parties opposed Musharraf's constitutional amendments.
During 2003 the MMA managed to strike a deal with Musharraf; to support the LFO in exchange for his acceptance of their Islamisation package. That package contains 17 points - seven are modifications of the LFO, ten relate to the Islamisation of society. (Link 1)
THE DEAL IS DONE
In late December 2003 the Pakistan Parliament passed the Seventeenth Amendment Bill, which asserts the validity of the Legal Framework Order (LFO), modified in accordance with the demands of the MMA. The amendments made by the Seventeenth Amendment Act and the modified Legal Framework Order, have now been incorporated into the text of the Constitution.
On 1 January 2004, General Musharraf secured a vote of confidence in both houses of parliament and four provincial assemblies, meaning he will remain in power until late 2007, and as military chief until the end of 2004.
Musharraf's success on both counts was due to the support of the MMA. So what has this cost in terms of quid pro quo with the MMA? Details of any deal are proving extremely difficult to find. However, some things are self-evident. President Musharraf's dependence upon the MMA severely limits his ability to deal with Islamist extremism and terrorism, and this puts Musharraf in a hard place. He must appease the U.S. for military aid, and he must appease the mullahs and the MMA for regime survival. This seriously compromises security for Christians in Pakistan. Ultimately it also compromises Musharraf's own security.
RESURGENT EXTREMISM
Reuters reported on 16 January 2004 that the car bomb that exploded outside the Holy Trinity Cathedral/Bible Society complex in Karachi on 15 January "was a fertiliser bomb very much similar to what was used in the U.S consulate". The U.S. Consulate in Karachi (1 km from the Holy Trinity Cathedral) was bombed in June 2002. That attack was attributed to Al-Almi, a splinter faction of Harkat-ul Mujahideen, a group fighting in Kashmir. (Link 2)
TIME magazine reported in the 26 January issue that the militant Islamist group Jaish-e-Muhammad (also fighting in Kashmir) was behind the 25 December 2003 assassination attempt on Musharraf, and that this group is also linked to the June 2002 bombing of the U.S. consulate in Karachi.
Regarding the assassination attempt, TIME magazine comments (and we can apply this to the Bible Society bombing as well), "That Jaish-e-Muhammad has the capacity to launch sophisticated attacks on the President, possibly with insider help, is a situation partly of Musharraf's making. The government in Islamabad has long coddled militant Islamic groups, encouraging them first to help drive the Soviets out of neighboring Afghanistan and later to torment Indian troops in the part of the disputed state of Kashmir that is under Indian control.
"Under pressure from Washington, he (Musharraf) banned various militant organizations in January 2002, but he left their leaders largely unfettered and allowed the organizations to reconstitute under new names. Pakistan's intelligence services, which had helped build up the ground and infiltrate its fighters into Indian-controlled Kashmir, were hesitant to crack down, even after Jaish-e-Muhammad began unleashing religious terrorism within Pakistan." (Link 3)
Compass Direct (http://www.compassdirect.org ) reported on 23 January that Pakistani Christian teenager, Zeeshan Gill (16), was kidnapped for more than two weeks in November 2003 by Islamist militants training fighters for jihad in Kashmir. Zeeshan was taken to Jamia al Qasim al Aloom Islamic school (madrasa), beaten, forced to recite the Islamic creed, and threatened with death. He escaped home to his mother and they have fled into hiding.
Compass Direct reports, "According to Joseph Francis of the Lahore-based Center for Legal Aid and Assistance Settlement (CLAAS), the Gill family's dilemma is not unusual among Pakistan's tiny Christian minority." Joseph Francis told Compass Direct that CLAAS lawyers represented another boy who had been kidnapped as a minor. It was ordered that he be released from the madrasa. Shortly after his return to his mother, he was re-kidnapped and sent straight to Kashmir. No one knows his whereabouts.
Until the Pakistan government stops supporting the Kashmir jihad, dismantles the terror networks and cuts off their lifelines - madrasas and funds - the Christian community will remain at great risk.
---------------------------------------------
REPORT FROM THE INTERNATIONAL CRISIS GROUP
Unfulfilled Promises: Pakistan's Failure to Tackle Extremism
16 January 2004
The International Crisis Group has released a detailed report analysing and condemning Pakistan's lack of action against extremist Islamist organisations and madrasas. (Link 4)
The ICG report notes that the Pakistan government appears to be "more concerned about appeasing a valuable ally [MMA] than tackling the threats of terrorism and extremism in earnest."
The ICG accuses the government of refusing to invoke anti-terrorism laws against the leaders and members of banned militant Islamist organisations or dismantle their infrastructure. Hence when these groups are banned, they simply re-surface with new names and continue operations.
The government's failure to reform the jihadi madrasas is rooted in two issues - government support for the Kashmir jihad, and government dependence on MMA support for regime survival.
MADRASA REFORM & SECTARIAN VIOLENCE
The ICG reports details the links between the mullahs, the MMA and the madrasas and comments that "to appease the clergy and to gain the religious parties' support for the LFO, President Musharraf placed madrasa reform on the backburner".
"President Musharraf's MMA allies have categorically rejected, with a public campaign, government reforms of madrasas and any proposed laws to regulate their functioning, including curricula and finances." (ICG p 9)
Not only has madrasa reform gone on the backburner, but the issue of terrorist financing has been sidestepped altogether.
ICG reports, "Within Pakistan, the jihadi madrasa also continues to play a central role in promoting sectarian hatred and violence." And, "Sectarian tensions are bound to increase so long as the jihadi madrasa is allowed to preach religious intolerance." (ICG p 10)
HAMSTRUNG
Excerpts from ICG report page 16, under the heading "Strategies of Regime Survival" and subheading "Appeasing the Mullahs": "President Musharraf's pledges in 2002 to confront and eliminate Islamist extremism were compromised by his desire to obtain MMA support for controversial constitutional amendments and indeed his presidency. Now that the MMA has played a pivotal role in giving the LFO constitutional cover and helping Musharraf gain a vote of confidence to extend his presidency until 2007, the military-run government may be even less likely to risk taking effective action against the religious alliance and its many extremist offshoots.
"The quid pro quo for Musharraf's deal with the mullahs might never be officially revealed but can be gauged, at least partially, through the MMA's demands. Even prior to the December 2003 agreement, it had insisted upon official support for Islamisation in return for acceptance of the LFO and Musharraf's dual hats of president and chief of army staff. In June 2003, PML-Q leader Chaudhry Shujaat Hussain admitted that the government had accepted ten MMA demands for Islamisation, in addition to pledging government funding to 8,000 madrasas. The ten included legislation in accordance with the recommendations of the Council of Islamic Ideology; restructuring the economy, education and media along Islamic lines; ensuring rights for women in accordance with Islamic injunctions; and giving Islamic subjects equal importance with other fields of study in all educational institutions."
MMA's MASS CONTACT CAMPAIGN
On Sunday 18 January the MMA launched a "mass contact campaign" for the enforcement of its 17-point Islamisation programme, which it describes as "the only solution to the country's many problems".
MMA chief Qazi Hussain Ahmad said that Pakistan had to come out from under American influence, that "Kashmir Solidarity Day" should be celebrated nationwide on 5 February. Ahmad read out the MMA 17-point Islamisation package and said, "We want to enforce true Islamic system in the country and the 17 points covers all aspects of Nizam-i-Shariat [Islamic law] whose implementation would establish Nizam-i-Mustafa [Islamic system] in the country." (Link 5)
INCREMENTAL ISLAMISATION (ICG p 19)
The ICG report comments on the shari'a bill passed by the North West Frontier Province (NWFP) Assembly in June 2003, which pledges to impose "Allah's rule on earth through His pious men".
"Under another proposed law, yet to be presented to the provincial parliament, the MMA government intends to set up a hasba (accountability) department and ombudsman's offices at the provincial, district and local levels to ensure the enforcement of Islamic laws. Each ombudsman will have under his command a hasba force, a Pakistani version of the Taliban's vice and virtue police."
The ICG notes that, "The MMA's policies in the NWFP have encouraged extremists in other provinces and at the centre to follow suit." The report then details cases of Islamist groups in Baluchistan, the Punjab, Lahore, and Karachi, illegally enforcing elements of Islamic law, primarily in relation to depictions women in advertising, not only with impunity, but support from the national government.
"After the MMA's support for the Seventeenth Amendment, Prime Minister Mir Zafarullah Jamali emphasised that his party, the PML-QA [Musharraf's military-backed party], and the MMA are 'natural allies', and that both 'favour...implementing [a] complete Islamic system in the country'."
Elizabeth Kendal
Links
1) "Pakistan: Islamisation or dictatorship or both?"
WEA RLC News & Analysis, Elizabeth Kendal, 6 June 03
2) Police link Karachi church bomb, consulate blast.
By Aamir Ashraf , KARACHI (Reuters), 16 Jan 2004
http://www.reuters.com/locales/newsArticle.jsp?type=worldNews&locale
=en_IN&storyID=4139006
3) TIME. 26 Jan 2004
The Monster Within. By Tim McGirk in Islamabad
http://www.time.com/time/magazine/article/0,9171,1101040126-578991,0
0.html
4) Unfulfilled Promises: Pakistan's Failure to Tackle Extremism
Asia Report N°73
16 January 2004
http://www.crisisweb.org/home/index.cfm?l=1&id=2472
5) MMA launches mass contact campaign
HiPakistan 18 January 2004
http://www.hipakistan.com/en/detail.php?newsId=en51266&F_catID=&f_ty
pe=source
Monday, January 26, 2004
Friday, January 2, 2004
Sri Lanka: situation critical.
Date: Friday 2 January 2004
Subj: Sri Lanka: situation critical.
To: World Evangelical Alliance Religious Liberty News & Analysis
From: WEA RLC Principal Researcher and Writer, Elizabeth Kendal
The grief accompanying the death of the Buddhist nationalist champion, Venerable Gangodawila Soma Thero, along with all the subsequent and virtually unchallenged false information about a Christian conspiracy to murder him is resulting in the security situation for Christians in Sri Lanka becoming critical. (Link 1)
CONSPIRACY THEORIES - MURDER
Venerable Gangodawila Soma Thero (57) was a champion of Buddhist nationalism. He died of a heart attack on 12 December in Russia where he was receiving an honorary doctorate. He was also a diabetic. An autopsy confirmed that heart failure was the cause of death and that Ven. Soma, with a heart condition, had suffered a previous minor heart attack. Buddhist nationalists in Sri Lanka had wanted Ven. Soma's body returned without an autopsy. The Sri Lankan government made a special request to the Russian government for the autopsy to be done in Russia.
Ven. Soma's supporters allege however, that he was number four on a 'hit list' of an unnamed Christian group. They have even named a Christian businessman as being linked to a conspiracy to murder Ven. Soma. (Link 1)
The Sasana Sevaka Sangamaya, a lay organization formed by Ven. Soma, claims it has information that Christian fundamentalists had arranged a sum of US $24,000 to silence him and Medananda Thera. (Link 2)
Thousands of colour posters have appeared which accuse Christians, certain NGOs (non-government organisations), and leading businessmen of hatching a plot to kill Ven. Soma. (Link 3)
Angry, vengeful and grief-striken Buddhist nationalists are embracing the late Venerable Soma's contempt for Christianity and Christian NGOs, and his passion for anti-conversion legislation, with renewed militant fervour.
"NGO MAFIA"
Venerable Soma referred to NGOs as the instruments of a "diabolical conspiracy" by Christian powers to convert and corrupt the Singhalese Buddhist nation. In the light of such allegations it is not surprising that the office of World Vision in Sri Lanka was attacked on 13 November 2003.
Posters have gone up that read, "Let's defeat the NGO mafia", picturing Ven. Soma walking with the Sri Lankan army. This image sets up an expectation that along with Sri Lanka's monks, the Sri Lankan army should be a protector of Buddhism. It is also "'a veiled rise up call to the military - exhorting it to demonstrate its true patriotic role as the guardian of the Sinhala Buddhist nation,' a leading political columnist for an English weekly published from Colombo told TamilNet." (View posters at TamilNet - Link 4.)
ANTI-CONVERION LAWS
On Monday 29 December 2003, dozens of Buddhist monks protested "unethical conversions" by Christians and demanded anti-conversion laws be enacted immediately. One hundred Buddhist monks of the Jathika Sangha Sammelanaya have commenced a hunger strike "unto death" opposite the Buddha Sasana Ministry, urging the government and President Chandrika Kumaratunga to bring in laws to curb unethical conversions. They also charge Christian "fundamentalists" of operating under the guise of NGOs. (Link 5)
(As has been explained in previous WEA RLC reports on Sri Lanka, anti-Christian elements regard all conversions as coerced and unethical. Also, "fundamentalist" generally refers to evangelicals, generally not associated with the mainline denominations, i.e. Baptists, AOGs, independents etc.)
The Daily Mirror (Sri Lanka) reports that Sri Lankan Roman Catholic Archbishop Rt. Rev. Oswald Gomis and Bishop Rev. Marius Peiris have issued a joint statement expressing their concern over the growing number of complaints on the illegitimate and wrongful conversions, and distancing themselves from "fundamentalist Christian sects, particularly by the more radical elements". This is clearly a self-serving measure in the face of rising anti-Christian hostility.
According to this Daily Mirror article, ". . . anti-Christian slogans have become the order of the day. There are fears that this wrath might spiral to unimaginable levels with the tensions exacerbated by unsubstantiated reports both deliberately and unwittingly propagated." (Link 3)
"HOLY WAR" - CHRISTIANS ATTACKED
At Ven. Soma's funeral, some monks called for a "Holy War" upon Christians. (Link 1) One man at the funeral was savagely beaten after being identified as a Christian. (Link 4)
The Evangelical Alliance of Sri Lanka has documented 14 incidents of violent attacks against churches, house churches, pastors, and Christian families in the 5 days between the 24 December 03 state funeral of Ven. Soma and 29 December.
STATEMENT FROM WEA RLC
"The global church and all organizations working for human rights should closely monitor what now is happening on Sri Lanka and contact authorities in Colombo asking them to guarantee religious freedom for everyone in Sri Lanka," says Johan Candelin, Executive Director of the World Evangelical Alliance (WEA) Religious Liberty Commission and Goodwill Ambassador of WEA. "Unless this is done we are probably seeing only the beginning of a "disinformation war and subsequent attacks" against Christians. World Evangelical Alliance will surely take up these attacks at the UN Commission meeting in Geneva this spring (April)."
The articles linked to here are the most detailed reports on this horrific situation - they are essential reading.
Elizabeth Kendal
Links
1) Attacks on churches reflect religious tensions in Sri Lanka
By Feizal Samath, InterPress Service, 31 December 2003
http://www.manilatimes.net/national/2003/dec/31/yehey/opinion/20031231opi6.html
AND
Sri Lanka police on guard after attacks on churches
Reuters, 30 Dec 2003
http://www.alertnet.org/thenews/newsdesk/CL156772.htm
2) Sri Lankan Buddhists Target Christians for Monk's Death
By Champika Liyanaarachchi, Colombo, 23 Dec 2003
http://www.oneworld.net/article/view/75763/1/
3) Ethno-religious insecurities take precedence over peace process
By Champika Liyanaarachchi, Daily Mirror, Sri Lanka 24 Dec 2003
http://www.dailymirror.lk/2003/12/24/opinion/1.asp
4) Postmortem of xenophobia
TamilNet, 29 December 2003
http://www.tamilnet.com/art.html?catid=13&artid=10812
5) Fasting monks demand anti-conversion laws
Minister promises Cabinet proposal
By Pujitha Wijetunge Daily Mirror, Sri Lanka, 30 Dec 2003
http://www.dailymirror.lk/2003/12/30/front/1.asp
Subj: Sri Lanka: situation critical.
To: World Evangelical Alliance Religious Liberty News & Analysis
From: WEA RLC Principal Researcher and Writer, Elizabeth Kendal
The grief accompanying the death of the Buddhist nationalist champion, Venerable Gangodawila Soma Thero, along with all the subsequent and virtually unchallenged false information about a Christian conspiracy to murder him is resulting in the security situation for Christians in Sri Lanka becoming critical. (Link 1)
CONSPIRACY THEORIES - MURDER
Venerable Gangodawila Soma Thero (57) was a champion of Buddhist nationalism. He died of a heart attack on 12 December in Russia where he was receiving an honorary doctorate. He was also a diabetic. An autopsy confirmed that heart failure was the cause of death and that Ven. Soma, with a heart condition, had suffered a previous minor heart attack. Buddhist nationalists in Sri Lanka had wanted Ven. Soma's body returned without an autopsy. The Sri Lankan government made a special request to the Russian government for the autopsy to be done in Russia.
Ven. Soma's supporters allege however, that he was number four on a 'hit list' of an unnamed Christian group. They have even named a Christian businessman as being linked to a conspiracy to murder Ven. Soma. (Link 1)
The Sasana Sevaka Sangamaya, a lay organization formed by Ven. Soma, claims it has information that Christian fundamentalists had arranged a sum of US $24,000 to silence him and Medananda Thera. (Link 2)
Thousands of colour posters have appeared which accuse Christians, certain NGOs (non-government organisations), and leading businessmen of hatching a plot to kill Ven. Soma. (Link 3)
Angry, vengeful and grief-striken Buddhist nationalists are embracing the late Venerable Soma's contempt for Christianity and Christian NGOs, and his passion for anti-conversion legislation, with renewed militant fervour.
"NGO MAFIA"
Venerable Soma referred to NGOs as the instruments of a "diabolical conspiracy" by Christian powers to convert and corrupt the Singhalese Buddhist nation. In the light of such allegations it is not surprising that the office of World Vision in Sri Lanka was attacked on 13 November 2003.
Posters have gone up that read, "Let's defeat the NGO mafia", picturing Ven. Soma walking with the Sri Lankan army. This image sets up an expectation that along with Sri Lanka's monks, the Sri Lankan army should be a protector of Buddhism. It is also "'a veiled rise up call to the military - exhorting it to demonstrate its true patriotic role as the guardian of the Sinhala Buddhist nation,' a leading political columnist for an English weekly published from Colombo told TamilNet." (View posters at TamilNet - Link 4.)
ANTI-CONVERION LAWS
On Monday 29 December 2003, dozens of Buddhist monks protested "unethical conversions" by Christians and demanded anti-conversion laws be enacted immediately. One hundred Buddhist monks of the Jathika Sangha Sammelanaya have commenced a hunger strike "unto death" opposite the Buddha Sasana Ministry, urging the government and President Chandrika Kumaratunga to bring in laws to curb unethical conversions. They also charge Christian "fundamentalists" of operating under the guise of NGOs. (Link 5)
(As has been explained in previous WEA RLC reports on Sri Lanka, anti-Christian elements regard all conversions as coerced and unethical. Also, "fundamentalist" generally refers to evangelicals, generally not associated with the mainline denominations, i.e. Baptists, AOGs, independents etc.)
The Daily Mirror (Sri Lanka) reports that Sri Lankan Roman Catholic Archbishop Rt. Rev. Oswald Gomis and Bishop Rev. Marius Peiris have issued a joint statement expressing their concern over the growing number of complaints on the illegitimate and wrongful conversions, and distancing themselves from "fundamentalist Christian sects, particularly by the more radical elements". This is clearly a self-serving measure in the face of rising anti-Christian hostility.
According to this Daily Mirror article, ". . . anti-Christian slogans have become the order of the day. There are fears that this wrath might spiral to unimaginable levels with the tensions exacerbated by unsubstantiated reports both deliberately and unwittingly propagated." (Link 3)
"HOLY WAR" - CHRISTIANS ATTACKED
At Ven. Soma's funeral, some monks called for a "Holy War" upon Christians. (Link 1) One man at the funeral was savagely beaten after being identified as a Christian. (Link 4)
The Evangelical Alliance of Sri Lanka has documented 14 incidents of violent attacks against churches, house churches, pastors, and Christian families in the 5 days between the 24 December 03 state funeral of Ven. Soma and 29 December.
STATEMENT FROM WEA RLC
"The global church and all organizations working for human rights should closely monitor what now is happening on Sri Lanka and contact authorities in Colombo asking them to guarantee religious freedom for everyone in Sri Lanka," says Johan Candelin, Executive Director of the World Evangelical Alliance (WEA) Religious Liberty Commission and Goodwill Ambassador of WEA. "Unless this is done we are probably seeing only the beginning of a "disinformation war and subsequent attacks" against Christians. World Evangelical Alliance will surely take up these attacks at the UN Commission meeting in Geneva this spring (April)."
The articles linked to here are the most detailed reports on this horrific situation - they are essential reading.
Elizabeth Kendal
Links
1) Attacks on churches reflect religious tensions in Sri Lanka
By Feizal Samath, InterPress Service, 31 December 2003
http://www.manilatimes.net/national/2003/dec/31/yehey/opinion/20031231opi6.html
AND
Sri Lanka police on guard after attacks on churches
Reuters, 30 Dec 2003
http://www.alertnet.org/thenews/newsdesk/CL156772.htm
2) Sri Lankan Buddhists Target Christians for Monk's Death
By Champika Liyanaarachchi, Colombo, 23 Dec 2003
http://www.oneworld.net/article/view/75763/1/
3) Ethno-religious insecurities take precedence over peace process
By Champika Liyanaarachchi, Daily Mirror, Sri Lanka 24 Dec 2003
http://www.dailymirror.lk/2003/12/24/opinion/1.asp
4) Postmortem of xenophobia
TamilNet, 29 December 2003
http://www.tamilnet.com/art.html?catid=13&artid=10812
5) Fasting monks demand anti-conversion laws
Minister promises Cabinet proposal
By Pujitha Wijetunge Daily Mirror, Sri Lanka, 30 Dec 2003
http://www.dailymirror.lk/2003/12/30/front/1.asp
Monday, December 15, 2003
Canada: Applying Shariah through Islamic arbitration.
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.
----------------------------------------
RIGHTS SAFEGUARDED?
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
Links
1) First steps taken for Islamic arbitration board
Vancouver Independent Media Center
By Judy Van Rhijn
http://vancouver.indymedia.org/news/2003/11/87502.php
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
http://www.workopolis.com/servlet/Content/qprinter/20031211/SHARIA11
3) Canadian Muslims Press For Setting Up Shari'a Court
OTTAWA, Canada, 29 November 2003
http://www.islam-online.net/English/News/2003-11/29/article03.shtmlv
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
websites: http://www.evangelicalfellowship.ca
http://www.religiousfreedom.ca
http://www.christianity.ca
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.
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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:
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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.
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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.
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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.
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RIGHTS SAFEGUARDED?
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
Links
1) First steps taken for Islamic arbitration board
Vancouver Independent Media Center
By Judy Van Rhijn
http://vancouver.indymedia.org/news/2003/11/87502.php
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
http://www.workopolis.com/servlet/Content/qprinter/20031211/SHARIA11
3) Canadian Muslims Press For Setting Up Shari'a Court
OTTAWA, Canada, 29 November 2003
http://www.islam-online.net/English/News/2003-11/29/article03.shtmlv
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
websites: http://www.evangelicalfellowship.ca
http://www.religiousfreedom.ca
http://www.christianity.ca