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.
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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:
----
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

PAPUA: The Islamisation of Papua, the betrayal of a Christian people

 Date: Friday 21 November 2003
Subj: The Islamisation of Papua, the betrayal of a Christian people.
To: World Evangelical Alliance Religious Liberty News & Analysis
From: WEA RLC Principal Researcher and Writer, Elizabeth Kendal

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THE ISLAMISATION OF PAPUA -
THE BETRAYAL OF A CHRISTIAN PEOPLE
-----------------------------------------------------

On 19 November 2003, The Jakarta Post reported, "The government plans to launch revisions of two conflicting laws on Papua -- Law

No.45/1999 and Law No.21/2001 -- and is preparing the draft of a government regulation on the establishment of the long-awaited Papuan People's Assembly (MRP). With the revision and amendment of the two conflicting laws, the government plans to legitimize the establishment of new provinces in Papua." (Link 1)

The Indonesian government granted Papua Special Autonomy in 2001, and was required to establish a Papuan People's Assembly (MRP) to handle Papua's issues. The Indonesian government has, however, reneged on all counts. They never established the MRP and are now re-writing the Special Autonomy Law so that autonomy will only be granted to each newly created province, removing the Papuan people's right to have a say on the issue of division.

Indigenous Papuans are predominantly Christian. Of the three provinces, two (the resource-rich West Irian Jaya province and the resource-rich Central Irian Jaya province) will be majority Muslim, Javanese transmigrants. While the primary aim of the government is undoubtedly to maintain total, unhindered control over Papua's resources, the side effects of the division will be the emasculation and marginalisation of the Christian indigenous Papuans, and the inevitable Islamisation and Javanisation (new word!) of Papua.

Sources in Papua report that the Indonesian Army is continuously attempting to provoke indigenous Papuans, looking for grounds to implement a Military Operation similar to what is taking place in Aceh. This will effectively close Papua to the rest of the world and provide a platform for the military to overwhelm the Papuan community, further marginalise this community, and then finally open Papua up "for business". Papua will then come to be totally controlled by interests coming out of the rest of Indonesia.

According to sources, these interests represent a strong Islamic dimension. It is not an exaggeration to say that the decimation of the Papuan people could be imminent.

This posting includes a comment from the Reverend John Barr (Sydney,

Australia) who has a long history of involvement in mission, ministry, human rights and justice in Papua.

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THE AUTONOMY THAT CAME AND WENT
----------------------------------------------------

In 1999, President B.J. Habibie enacted a law (Law No. 45/1999) to divide Papua into three provinces ostensibly to speed up development. However, in response to bitter opposition from the Papuan people, he eventually postponed its implementation indefinitely.

In 2001, Indonesian President Megawati Sukarnoputri signed a presidential decree (Law No. 21/2001) granting Papua Special Autonomy. This decree addressed the issue of Law No. 45/1999, saying, "Expansion of the Papua Province into provinces shall be carried out with the approval of the MRP [Papuan People's Assembly] and the DPRP [Papuan Legislative Council] giving close attention to the social cultural unity, readiness of the human resources and the economic ability and development in the future." (Law No. 21/2001 Article 76) (Link 2)

However, in early February 2003, President Sukarnoputri signed another presidential decree (Law No. 1/2003) calling for the implementation of the 1999 law to divide Papua into three provinces - West Irian Jaya, Central Irian Jaya and Papua.

Implementing Law No. 1/2003 and dividing Papua without the approval of the MRP (a body the central government was required to establish but never did) clearly violates the Special Autonomy Law No 21/2001.

(For a definition of what the MRP is supposed to look like, see Law No 21/2001 Article 1.g, article 5.2 & articles 19-25. Link 2. Also see link 3)

The Papuan people are strongly opposed to the division of Papua and had assumed that the 2001 Special Autonomy Law had rendered the 1999 law void.

THE GOVERNMENT DIVIDES PAPUA

On Thursday 13 November, the House of Representatives (DPR) endorsed the government's move to divide Papua into three provinces, thus giving more legitimacy to the government in moving ahead with the plan, despite strong opposition from Papuans and others such as Abdurrahman Wahid (Link 4).

On Friday 14 November, the Indonesian Minister of Home Affairs, Hari Sabarno, installed Brig. Gen. (ret) Abraham Octovianus Atururi as the governor of West Irian Jaya province, despite controversy over the status of the province.

According to the Jakarta Post (15 Nov), his inauguration marks the official split of West Irian Jaya from Papua. Atuturi's sudden inauguration prompted criticism from Papuan leaders and people, as well as protest that Atuturi's inauguration was legally flawed.

"I am afraid the inauguration will spark social conflict in Papua,"

said Frans Maniagasi, the Secretary of the Center of Information for Humanity, Justice and Truth in Papua (PIK-3-TanPa).

RE-WRITING THE LAW

To fix the legal anomaly, the Indonesian government has decided it will amend the Special Autonomy Law (an act which is in itself a violation of that law - see link 2 article 77) and Law No.45/1999.

According to the Minister of Home Affairs Hari Sabarno, the revised laws will say, "the establishment of new provinces must be with the approval of the MRP and DPRP, except for those established before the revisions." This will exempt Law No. 45/1999 from the protocols established in the 2001 Special Autonomy Law. Special Autonomy will now be granted to the individual provinces, not to Papua as a whole.

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COMMENT FROM REV. JOHN BARR
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The Special Autonomy deal for Papua always rested on the establishment of the Papuan People's Assembly (MRP) and a commitment to enabling Papuans to have direct say in the future of their land.

I remember listening to a number of discussions in Papua when this move was announced by Jakarta. Many Papuans believed this was a step towards a better future. Others argued that Jakarta cannot be trusted. Unfortunately those arguing against Special Autonomy appear, at this stage, to be right.

Division of Papua into three separate provinces manipulates the changing demography of this region. With the continuing arrival of migrants from Islamic regions of Indonesia, some observers suggest the population ratio of Christian to Islam is already 50-50 (generally the figure is seen to be around 60-40 - however I am sure the ratio is much closer these days) and there is evidence indicating that the further west one goes, the more Islamic Papua becomes. Therefore the formation of three provinces creates a scenario where the most western province will have a definite Islamic majority while the central province will be very close to Islamic majority and the eastern province will remain with a Christian majority.

This means that up to two thirds of Papua will be ruled by Muslim dominated local administration. Natural resources are concentrated in the western and central regions (oil and gas reserves in the west together with copper and gold in the central province) while the eastern province is relatively poor. Jakarta argues that the division of Papua into three new provinces will aid administration in this remote region. It will certainly have the effect of further marginalising indigenous Papuans in their own land.

A war of attrition has been taking place in Papua for 40 years.

Papuans are already marginalised in terms of access to education, health care and a share in the wealth of their land. The revision and amendment of current laws accelerates the pace and one cannot help believing this is an attempt to overwhelm indigenous Papuans and their strong Christian heritage.

Papuans currently support the creation of a "zone of peace"

throughout Papua. I am deeply concerned the Minister for Home Affairs' announcement [to install Atururi as governor of West Irian Jaya province] will provoke a backlash and undermine the important peace that has been established. A tragedy of great proportions could take place. Such a tragedy will involve violence against the Papuan population through military action similar to what took place in East Timor and what is now taking place in Aceh.

It seems as though the Papuan people have nowhere to go. The present scenario indicates that most of the region will be predominantly Islamic in a matter of years.

Reverend John Barr

Executive Secretary for Unity and International Mission for the Uniting Church in Australia National Assembly.

------------------------------------------

- Elizabeth Kendal

Links

1) Govt to revise conflicting laws on Papua; National News - 19 November 2003
by Kurniawan Hari, The Jakarta Post.

2) BILL OF LAW OF THE REPUBLIC OF INDONESIA NO. 21 YEAR 2001 ON SPECIAL AUTONOMY FOR THE PAPUA PROVINCE 

3) Govt to emasculate Papua's special autonomy; National News - 2 September 2003
Moch. N. Kurniawan, The Jakarta Post

4) Following Clashes, Govt Told Not to Divide Papua, By Abdurrahman Wahid (Gus Dur)
26 August 2003 Jakarta.

Extra background:

WEA RLC News & Analysis, "Papua: A conflict in waiting" 21 February 2003.

Turkmenistan: religious minorities effectively banned.

Date: Tuesday 18 November 2003
Subj: Turkmenistan: religious minorities effectively banned.
To: World Evangelical Alliance Religious Liberty News & Analysis
From: WEA RLC Principal Researcher and Writer, Elizabeth Kendal

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RELIGIOUS MINORITIES EFFECTIVELY BANNED
---------------------------------------------------------

It was back in 1999 that the Turkmenistan government declared its intention to "strangle" minority faiths. All foreign Christians were expelled and the persecution of national believers, especially ethnic Turkmen, intensified intolerably.

While unregistered minority religious groups were not illegal, members of unregistered groups were scorned, harassed and persecuted, particularly by the National Security Committee (security police - KNB, formerly KGB). Christians have been beaten, tortured, had their homes confiscated and been driven into exile. For all its boasting of freedom of belief, Turkmenistan severely abuses religious liberty.

Turkmenistan has now replaced its highly repressive 1991 religion law with an even more repressive version. The new religion law, signed by President Niyazov on 21 October, came into effect on 10 November 2003. Unregistered religious activity is now officially banned as illegal. Members of minority faiths (Baptists, Pentecostals, Jews, Adventists etc), who have long been subject to administrative punishments, are now vulnerable to criminal charges.

NEW RELIGION LAW

Article 8 of the new religion law states, as previously, that registration with the Justice Ministry requires 500 adult citizens living inside the country. This requirement is so restrictive that only the Sunni Muslims and Russian Orthodox will be able to achieve registration. Evangelicals that minister to ethnic Turkmen find it doubly difficult to find the 500 members necessary for registration. To protect ethnic Turkmen believers from persecution, and to protect congregations that minister to ethnic Turkmen from harassment, evangelical churches will often not list the names of ethnic Turkmen on their rolls.

Article 11 states, "The activity of unregistered religious organizations is banned. An individual carrying out activity in the name of an unregistered religious organization bears responsibility in accordance with the laws of Turkmenistan."

Article 14 gives the Justice Ministry the right to cancel a group's registration on a wide range of bases, from "interference in family relations leading to the breakdown of the family", to "violation of social security and social order".

Article 15 requires all registered religious organizations receiving money or other support from foreign donors to notify the Justice Ministry.

Article 20 requires all religious literature imported by registered religious organizations to be approved by the Gengeshi (Council) for Religious Affairs.

Article 6 states, "The teaching of spiritual beliefs on a private basis is banned and bears responsibility in the manner established by the law of Turkmenistan."

CRIMINAL CODE AMENDED

The criminal code has been amended to provide punishments for those breaking the law by engaging in unregistered religious activity. According to Forum 18, "The new article 223 part 2 of the Criminal Code, also signed by President Niyazov on 21 October, punishes 'violation of the law on religious organisations'. Those breaking the law who have already been punished within the space of a year under the Code of Administrative Offences 'are to be punished by a fine of between ten and thirty average monthly wages, or corrective labour for a term of up to one year, or deprivation of freedom for a term of up to six months, with confiscation of illegally received means.' Such criminal punishments could be imposed on those who lead unregistered religious communities or those who teach religion in such communities." (Link 1)

PRISON IN TURKMENISTAN

It is important to note here that Turkmenistan's prisons are absolutely appalling. Turkmenistan is thought to have one of the highest per-capita prison population rates in the world. Most prisons are situated in the desert where the temperature can climb to 55 degrees Celsius, and they usually house up to ten times the number of inmates they were built to house. What's more, provisions are supplied for only the number of inmates the prison was built to hold.

Gulgeldy Annaniyazov, a former political prisoner (now living in Europe), reported to Radio Free Europe/Radio Liberty last year (21 Nov 2002) that where he was imprisoned near Turkmenbashi City for three and a half years, there were 8,000 inmates but only one water faucet. "We had really no food to speak of in our prison. They gave us food but first you had to clean the cockroaches and worms out of it, then you could eat." Since Turkmenistan became independent in 1991 no monitoring group has been permitted to monitor prison conditions.

We must never underestimate what prison means for a Turkmenistan believer.

FREEDOM OF BELIEF?

Forum 18 quotes Murad Karryev, deputy head of the Gengeshi (Council) for Religious Affairs, as saying during a half-hour television programme on the new law on 7 November that there is "complete freedom of belief for all sects and confessions" as long as they are registered officially. "We do not intervene in the affairs of religious sects and confessions if they are legally registered at the Ministry of Justice."

While this statement is no doubt true, the repressive restrictions make a mockery of religious freedom.

Joseph K. Grieboski, the President of the Institute on Religion and Public Policy condemned the new religion law saying, "The passage of this law uses quasi-democratic means to eliminate basic rights ideally guaranteed by the state. The Government of Turkmenistan has ignored its commitments to international agreements, flown in the face of international norms, and ignored the basic rights due the citizens of Turkmenistan." (Link 2)

SOCIETY UNDER PRESIDENTIAL SCRUTINY

Forum 18 reports, "Speaking on television on 22 October, Justice Minister Taganmyrat Gochyev said tighter control of religious groups and public organisations was needed to address security concerns."

Radio Free Europe/Radio Liberty adds, "Erika Dailey, director of the Open Society Institute's Turkmenistan Project based in Budapest, points out that 'the new religion law and criminal code amendment are consistent with a larger government effort to bring Turkmen society even further under its control.

"'It's worth noting,' Dailey told RFE/RL, 'that this new revised law on religion and religious organizations in Turkmenistan was signed into law at exactly the same time that a parallel law on NGOs, on nongovernmental organizations, was also signed into law. And the spirit of both new laws is very similar. It is to provide administrative oversight headed by the president himself of nongovernmental activities, whether they be religious or civic in nature.'

"Dailey adds that it is likely not a coincidence that the laws came into force in the days preceding the first anniversary of the 25 November alleged assassination attempt against Niyazov." (Link 3)

- Elizabeth Kendal


Links

1) New religion law defies international human rights agreements
By Felix Corley, Forum 18 News Service11 Nov 2003
http://www.forum18.org/Archive.php?article_id=180

2) Institute Condemns New Turkmenistan Religion Law
Washington, DC, November 11, 2003
http://www.religionandpolicy.org/show.php?p=1.1.885

3) Ashgabat Takes Further Steps To Suppress Religious Faiths
By Antoine Blua, Radio Free Europe/Radio Liberty 14 Nov 2003
http://www.rferl.org/nca/features/2003/11/14112003152539.asp