Two years ago I was sitting in a hotel room in Iran reading Tehran Today, an English-language newspaper. My chador, the compulsory black sheet worn by all women to hide sexy contours, was hanging on a hook beside my hotel bed. Close by like this, I could put it on quickly if someone knocked on the door. In order that no one see me uncovered, the room lacked windows. I had been told that if I was seen uncovered I would be charged with the crime.
The story I was reading in Tehran Today concerned an eight-year-old girl who had permitted her next-door neighbour, a twenty-year-old man, to enter her house and rape her. "Permitted" was how the report put it. The eight-year-old girl had been tried and condemned to death by stoning.
I had recently been frog-marched by police out the front doors of a mosque and shoved to the side entrance. Only there were women permitted to enter. The day before that, I had mistakenly sat down at the front of a bus. Frowning, the driver had ordered me to the back where the women sat. And I had gone into a tea shop, having been told women were permitted to do so; inside I had walked past rows of men sucking hubbly-bubbly pipes and glaring at me. Later I learned that I should have entered with an escort.
But the most uncomfortable incident occurred while I was walking with an English-speaking local man. Three small girls were walking in front of us; they had just gotten out of school. Only one had her head covered. Supposedly, females don’t need to have their heads covered until they reach puberty; nevertheless the man walking with me became enraged by the indecency he was looking at. His anger so frightened me I left him as soon as I could.
Iran is not a comfortable place. I have travelled extensively to over fifty countries; usually I find I can adapt to what I meet: my measure of respect for a local culture is met by a measure of respect for what I am. But in Iran there was no mutual respect: it was the men’s way or nothing. I have travelled in other Islamic areas: northern Pakistan, the Sudan, eastern Turkey, Egypt, Malaysia, Indonesia. They aren’t as bad as Iran, but in these areas, too, rigid codes of behavior determine women’s lives.
Yesterday I sat in my home in Canada with my front curtains opened. I was wearing shorts and a halter top. My feet were bare and my hair hung down my neck. I was reading about a lawyer in Toronto named Syed Mumtaz Ali. He presides over an organization set up by him called the Muslim Civil Justice System in Canada. Mumtaz Ali formed this organization as a vehicle by which civil disputes among Canadian Islamic families could be settled using Islamic or Sharia law. Mumtaz Ali wants to make use of Ontario’s Arbitration Act. This act was originally passed by the Ontario Legislature to deal with labour disputes. Mumtaz Ali wants to use it as a means to implement Sharia law.
"Sharia" means "The Way." The name indicates the absoluteness of Islamic law. It is holy law. It doesn’t just derive from Islam’s values. It derives from its faith. The secular societies of Europe and the Americas and parts of Asia haved moved away from such law. But not the Arab world. Their law is the law of state religion.
Of course, there are nuances, some of them large. Malaysia and Indonesia are not Saudi Arabia, for instance. In Saudi Arabia, Sharia law precludes any concept of human rights or freedoms: it incorporates literal interpretations of select passages of the Koran. Thus, honour killings are practiced. The honour of a family is lost when a woman chooses to dress, talk, live, work or marry as she chooses. When the honour of a family is lost, the men of the family must restore it. This they do by killing, often by beheading, the woman responsible.
It isn’t just Saudis who practice honour killings. Recently Fadima Sahindal, an Islamic woman of Kurdish origin living in Sweden, was killed by her father for her choice of lifestyle. (Indonesia, on the other hand, is moving away from literal interpretations of the Koran. In Indonesia divorce is no longer instigated only by the husband.)
How can Islamic law, in any form, become part of Canadian law? The pertinent section and subsection of Ontario’s Arbitration Act states: "In deciding a dispute, an arbitral tribunal shall apply the rules of law designated by the parties or, if none are designated, the rules of law it considers appropriate in the circumstances."
In other words, if the parties going for resolution agree to follow Sharia law, then Sharia law will be used. Such is the hope of Mumtaz Ali’s Muslim Civil Justice System.
However, other sections of the Arbitration Act put the above-quoted sentence in context. Arbitration decisions must conform with existing Canadian law. In a case given as an example in The Globe and Mail (May 29, 2002), a working Muslim woman took some money from her paycheque instead of giving it all to her husband. Her husband complained at his mosque. The Imam judged the case under Sharia law. The Imam decided that the woman had disobeyed her husband and would now be banned from the marriage bed. Her husband could bring in a new wife for bed duties. The first wife would have to continue working and continue giving her wages to her husband.
This decision could not be enforced. It violates Canadian law. So far as I can tell, all judgements of the Sharia court are, at least right now, of this nature. They are not arbitrations. They do not have the force of law. You may wish otherwise if you are an extremely divout or doctrinaire Muslim; you may think otherwise if you are a recent immigrant. But it is not so. The mosque’s court is not the law. And so far, it seems, the use of Sharia law via the Arbitration Act has been non-intrusive. Furthermore, I suppose, it saves Ontario money by each year keeping a few people out of family court.
Supporters of Sharia law point out that we have such mediation taking place in churches of all denominations, in synagogues, and in First Nations healing circles. Note, though, that these cannot be done through the Arbitration Act, which as I will point out in a moment is precisely an act that defines arbitration – a legally binding decision – rather than mediation, which is essentially a process of conciliation.
But Mumtaz Ali wants to push the application of the Arbitration Act. He bases his argument on section 15 of the Charter of Rights and Freedoms, which prohibits discrimination on the basis of, among other things, religion. Mumtaz Ali argues that he cannot practice Islam if he cannot obey Islamic lalw.
The elaboration of this argument is contained in a 54-page 1991 article called "Oh! Canada – Whose Land, Whose Dream?" This article talks about the "contradictions" in Canada’s legal and political systems. It asks: Who do MPs and MLAs represent: themselves, their parties or their constituencies? It argues: How can the concept of the will of the majority be reconciled with the concept of human rights? After all, politicians complain all the time about their powerlessness as the Supreme Courts tear their legislation apart or force the creation of legislation based on case-by-case interpretations of the Charter. Most important, the article wonders: How can we have freedom of religious and racial expression when we cannot work to realize our religious faith in law and politics?
Mumtaz Ali is arguing for state religion for Canadian Muslims. He is arguing for a legal structure and a political structure which are apart from the legal and political structure of Canada. He would like to get rid of the Constitution and the Supreme Court and have law established and changed solely in parliament. He would like to have parliamentary representation strengthened by recall, so that MPs and MLAs and their parties would have to listen harder to their constituents. He would like to give the provinces more power. And finally, he would separate ethnic groups and give each their place. Thus, for examples, the First Nations could have all the land in northern Canada as their province.
You can see where this is heading. A number of near-autonomous provinces. Each province making its own laws, evolving its own political structure. One province, no doubt, to be Muslim.
Mumtaz Ali fails to understand – or appears to fail to understand – that democratic systems evolve directly out of the contradictions he lists. This fundamentally distinguishes democracies from monolithic states and theocracies, in which contradictions are banished. He doesn’t see – or ignores the fact – that democracies always contain a battle between the individual and the larger society. Minority rights come up against majority votes; individual MPs and MLAs juggle their consciences, the party line and the desires of their constituents; elected parties argue with the courts.
Assume that Sharia law was granted legal status in Canada and was used under the Arbitration Act. Then Section 35 of the Act would come into play. It states: "Members of an arbitral tribunal shall not conduct any part of the arbitration as a mediation or conciliation process or any other similar process that might compromise or appear to compromise the arbitral tribunal’s ability to decide the dispute impartially." Furthermore, another section states that Canadian courts could intervene to "enforce awards." So that once a decision was made in Sharia court, it would be up to Canada’s enforcement agencies to ensure the decision was carried out.
In The Globe and Mail‘s case, for instance, a sheriff would serve papers for the wages of the wife to be garnisheed. In other fairly typical cases of Sharia law, a judge would pronounce a man divorced once he said to his wife three times: "I divorce you." In cases of inheritance, wills would be challenged if a brother did not get twice as much as his sister.
Other activist Muslims are irritated at Mumtaz Ali for speaking out. On Islam on Line, Faisal Kutty – a Toronto lawyer and board member of the Council on American-Islamic Relations Canada, an organization which works to "empower" Canadian Muslims – Faisal Kutty said that Mumtaz Ali made a grave mistake by announcing to the media that Sharia law was possibly becoming law in Canada.
Not, apparently, that he had problems with Mumtaz Ali’s ideas. He simply felt that Mumtaz Ali had made tactical mistakes. The various Islamic groups should have gotten together before they went to the media; they should have called Sharia by another, more innocuous name like Muslim (or Islamic) Dispute Resolution. They should have been covert, and waited until they had power before clarifying their intentions.
Well, too bad. As it stands, the Ontario government must rethink the idea of legalizing Sharia. I suspect Ontario’s Liberals will back off; and I hope this whole thing will start Canadians thinking about how great, really, their political system is, how effectively it balances individual and societal needs and keeps conflict in parliament and off the streets.
I feel the urge to laugh at Mumtaz Ali. We encounter idealists or visionaries like him all the time – Pro-Lifers, Communists, people who believe they have the perfect system, people who believe their consciences should prescribe the rules for everyone.
But along with the urge to laugh, I feel the discomfort I always feel when faced with Those Who Know the Truth. Being a Canadian, I tend to avoid such discomfort by letting Those Who Know the Truth have their way. But in the case of Sharia law, I think Canadians have gone too far down the road of avoidance. European nations and the US are presently telling people like Mumtaz Ali to seek purity elsewhere. They are legislating against manifestations of ethnic purity that weaken democracy. I think it’s time Canada did the same.
July 12, 2004