Shari'a -
Islamic Law
Sharia in Canada? Just Ask Mumtaz Ali
April 28, 2004
I am not a fan of the current Pope or any pope for that matter. So if
all that Mumtaz Ali did was insult the Pope – and he did grievously
insult the Pope – I would consider it nothing more than an example of
deplorable manners. Besides, the Pope doesn’t need me to defend him.
Ali, in case you’re wondering, wrote this: “Ayatollah Khomeini had
condemned Salman Rushdie because his book was considered blasphemous;
the Pope condemned Madonna for her provocative songs. As head of his
respective religious structure, each did what was expected of him by his
followers. Any Muslim cleric would have reacted to this book in the same
manner as the Ayatollah; any Catholic priest would have found Madonna’s
songs distasteful.” (Ali, Apostasy)
True, the Pope probably doesn’t like Madonna’s work very much, but to
suggest, even slyly, and this is not that slyly, that the Pope is
essentially the same as Khomeini – a man who publicly counseled murder –
is an insult of the highest order.
Still, if that was all that Ali did, I would pass without comment. But I
can’t. Mumtaz Ali is not just a retired Canadian lawyer with a penchant
for outrageous insults. He is, rather, a driving force behind an
initiative that could potentially deprive tens of thousands of Canadians
of their most basic rights.
Mumtaz Ali, you see, is a Muslim who wants to establish a beachhead for
Sharia – Islamic law – in Canada, Sharia condoned and enforced by the
Canadian legal system itself.
Mumtaz Ali, said to be the first Canadian lawyer to swear his oath of
practice on the Quran rather than the Bible (Rhijn, 2003) an oath that
one might reasonably expect entails a belief in and adherence to the
Canadian legal system, apparently has little or no use or respect for
the very system that has provided him a long and presumably lucrative
livelihood. I base this on Ali’s own words, published on-line in
Apostasy and Blasphemy in Islam.
In “Chapter 8 – Some Pertinent Issues” Ali presents a shorthand version
of his beliefs. He prefaces a list of these ideas with the comment that,
“The following additional differences and distinctions between the
Islamic and western ideologies, philosophies of life and legal systems
(including systems of punishment) deserve particular attention.”
Paying attention to what he says is indeed illuminating with respect to
the very legal system he has been an active part and beneficiary of for
his working life. Below are some of Ali’s comments (capitals and italics
are Ali’s):
Islam does not believe in the principle
of separation of the spiritual and the temporal, the sacred and the
profane nor the church and the state.
The Islamic concept of PERSONAL FREEDOM is the complete opposite of
western thought. According to Islam, personal freedom is available and
permissible only in respect to matters which are NOT REGULATED by the
injunctions and prohibitions laid down by the Qur’an and the Sunnah, for
these are expressions of the inherent Divine Wisdom manifested through
Divine Will.
Islam repudiates entirely the latest version of the philosophy of
western democracy in which the west accepts the absolute sovereignty of
the people, the absolute powers of legislation rest in the hands of the
people, lawmaking is their prerogative and legislation must correspond
to the mood and temper of their opinion.
Since he professes himself to be a good
Muslim, I am left to question his sincerity in his service to the
Canadian legal system, a system that is predicated on the separation of
church and state, that is predicated on the will of the people.
“Islam repudiates,” Ali says, and Ali is a faithful adherent to Islam.
Still, one might ferret out an idea of how to resolve, to some degree,
this seeming contradiction of swearing allegiance to a system that his
religion repudiates. There is apparently an Islamic version of render
unto Caesar what is Caesar’s, to God what is God’s. Muslims living
in non-Muslim states are enjoined to abide by, as far as is possible for
good Muslims, the laws of those states.
In a 1995 interview, Ali was asked where he stood on polygamy, a common
practice in Muslim states, but a hot-button issue in much of the West.
Ali remarked: “I stand on the Shariah which states that a Muslim living
in a non-Muslim country must obey Muslim Law to every extent possible,
and that we must adhere to the laws of the host country. Therefore, we
accede to the Canadian law on this point without accepting its
superiority or supremacy over Muslim law.” (Mills, 1995)
Given that response, I don’t actually doubt that Ali worked quite
appropriately within the Canadian legal system. His own words, however,
make it clear that Ali is in no way a fan of Canada’s legal system.
Indeed he is a prime mover behind the recent push to sidestep Canadian
practice by giving Sharia a measure of official status in Canadian law.
In that same interview, Ali says the following: “Do you want to govern
yourself by the personal law of your own religion, or do you prefer
governance by secular Canadian family law? If you choose the latter,
then you cannot claim that you believe in Islam as a religion and a
complete code of actualized life by a Prophet who you believe to be a
mercy to all.” (Mills, 1995)
If Ali was adhering to Canadian law while also recognizing Islamic law
as superior, and the one to which every good Muslim must attempt to
adhere to, he must have been tap dancing pretty much constantly. In
drawing up something as simple as a will, for example, would he have
counseled his clients to draft a will in ways that would reflect
Canadian norms or Islamic law? Islam assumes that a man is the provider
for a woman, so that a son inherits, as a matter of course,
proportionally more than a daughter.
Really, there is little conflict in this simple example. In Canada
people are fully entitled to dispense with their property as they see
fit so long as no Canadian law is broken in the process. Disputes over
wills, however, are legion, and often the legal system is left to sort
out the issues – to sort them out according to Canadian legal norms.
This arrangement, however, is no longer good enough for Ali and others
in the Canadian Muslim community. They want personal family law (PFL) to
reflect specifically Islamic dictates for Canadian Muslims, and they
want Canadian law, initially Ontario’s Arbitration legislation, to
sanction this. It is not enough for them to allow individuals freedom of
choice. Even mediation, in which parties gather voluntarily to solve
disputes in the presence of disinterested parties, is given no value.
For Ali, if mediation cannot force Canadian Muslims to settle according
to Islamic law, then mediation is of little consequence.
About mediation, Ali says, “From the point of view of the Canadian
society of Muslims and our campaign goals, mediation is a toothless form
of conflict resolution because it still does not address our needs for
legislation to enact Muslim PFL within the Canadian domain. (Mills,
1995)
Yet Ali still is trying to tread carefully. Polygamy is a hot-button
issue, and he has already side-stepped that by saying he an other
Muslims will have to “accede to Canadian law” on that. He suggests the
same for child custody disputes. Ali is quoted as saying, with respect
to child custody, “We cannot use that aspect because Canadian law is
very sensitive to the interests of the child and courts must decide
custody.” (Jiminez, 2003)
The implication is that Sharia treatment of children is less “sensitive
to the interests of the child” that Canadian legal norms. However, I
doubt Ali really believes that, especially when recalling that any
Muslim who chooses to govern himself by “secular Canadian family law” is
someone, according to Ali, “cannot claim … [to] … believe in Islam as a
religion and a complete code of actualized life by a Prophet who you
believe to be a mercy to all.”
Rather, it seems that Ali is going for what he can get. Care for
children is incorporated into Sharia, and Ali’s purpose is to extend
Sharia into Canadian life as far as possible. If that means – for now –
ceding child custody to the system he repudiates, fine. He has enough to
do breaking down other repudiated legal processes, processes like
mediation.
Ali clearly doesn’t like mediation. He does, however, like binding
arbitration. In fact, binding arbitration is what Ali is after. He wants
personal family law for Canadian Muslims to be subject to binding
arbitration based specifically on Sharia principles. And he wants
Canadian law to enforce his plan.
Given his apparent willingness to restrict his initiative so that
sensitivities such as those over polygamy or child custody are not
abused (mostly, in my opinion, so that opposition won’t be roused) you
might think that is as far as Ali wants to go. Think again.
Ali’s words over the years make it clear that a beachhead for Sharia in
civil law is only the beginning. He sees the international Muslim
community as a distinct society, and in Canadian political history, in
the struggle with Quebec, he sees an opportunity to make his beliefs
real.
For starters, he suggests Canada needs to be “cured.” In his defense of
Sharia sanctions against blasphemy and apostasy – both punishable by
death – Ali discusses what he sees as differences between Islamic and
western views of the concept of the nation state. Ali says the
following:
Islamic concepts of “State,
nation/nationality,” “citizenship” and “naturalization” are drastically
different from these notions as we understand and routinely use them in
Western secular countries where they are defined as follows: a nation”
is defined as “a body of people recognized as an entity by virtue of
their historical, linguistic or ethnic links; a body of people united
under a particular political organization, and usually occupying a
defined territory.” And a “state” is defined as, “a self-governing
political community occupying its own territory; a partly autonomous
member of a political federation; the political organism as an abstract
concept.” Islam came to class these notions among the evil traits of
humanity and tried to bring about a cure. (Ali, Apostasy)
For Ali, the Islamic cure is religion,
specifically Islam, and this is achieved by claiming that Islam is a
nationality: “What is the Islamic cure? Or to put it another way: How
different then is the Islamic concept? To start with, the basis of the
Islamic nationality is religious (sic) not political, ethnic, linguistic
or regional.” (Ali, Apostasy)
To some extent I share a sympathy here. Identity politics – the politics
of race, colour, nationality – seem historically to be corrosive by
their nature. But so, perhaps even more so, is religion. Catholic versus
Protestant, Christian versus Muslim, Hindu versus Sikh, none of these
has resulted in lasting peace. The idea the Islam will “cure” the
problem – presumably by making everyone Muslim – is more than a little
disingenuous.
There would be far fewer conflicts around the world if everyone was
Jewish, too. Or Hindi. Or Buddhist. Or Catholic. But that is missing the
point. Ali doesn’t want to be in a Buddhist state, he wants all Muslims
to be in a Muslim state, one not bounded geographically, and he will
start the creation of that international state by demanding the
acceptance of Sharia in Canadian law.
Ali and friends may be willing to start with personal family law, but it
won’t end there. In fact, Ali makes his case that Islamic punishment for
blasphemy and apostasy – death – is not only reasonable in Islamic
countries, but in Canada, too. He makes the argument that the Canadian
Charter of Rights and Freedoms would accept this (the italicized phrases
are Ali’s):
It is our position … that the limits
prescribed by Islamic law, with regards to blasphemy/apostasy, do
satisfy both the Charter requirements: namely (i) the Islamic limits
are reasonable limits, and are (ii) demonstrably justified
within the meaning of Section 1 of the Charter on these grounds: a) The
provision of the Preamble regarding the supremacy of God, b) the
constitutional obligation to interpreted (sic) in a manner consistent
with the preservation and enhancement of the multicultural heritage of
Canadians, c) that over one billion people worldwide consider these
limits to the freedom of speech/expression to be reasonable, d) (i)
what such a large segment of the Canadian minority believes as a precept
of their faith/religion ought to be fully recognized if the Charter’s
provision respecting freedom of religion are to have any real
meaning. (ii) Adherence to Islamic principles in this context, ought to
be accepted as sufficient enough to satisfy the Charter Requirement of
demonstrable justification. Recognition of Islamic standards of
reasonable limits on the freedom of speech does not necessarily entail
any obligation to enforce the Islamic punishment for blasphemy/apostasy
within the Canadian jurisdiction. (Ali, Apostasy)
The punishment Ali is arguing for is
death. He is using the Canadian Charter of Rights and Freedoms to
suggest that Muslims in Canada should be subject to death for either
apostasy or blasphemy, although he is so open-minded as to suggest that
Canadian Muslims would not be obligated to kill one of their own.
This is the same man who is arguing for the acceptance of Sharia – in
binding arbitration – in Canadian personal family law, even if, for the
moment, he can live with restricting the initiative so that polygamy and
child custody might not be involved.
For some, I suppose, bending Ontario arbitration legislation to the
point of enforcing Islamic PFL may be a modest, even innocuous move. For
Ali, who clearly envisions an amorphous, international Islamic state
divorced from any western legal norms, this would be a huge first step.
By J. D. Sturtridge
List of Sources
Ali, Mumtaz. Apostasy and Blasphemy in Islam. Downloaded 23 March 2004
from the
Canadian Society of Muslims web site: http://muslim-canada.org/apostasy.htm
Interview: A review of the Muslim Personal/Family Law Campaign. (1995).
Coordinated by Rabia Mills. Downloaded 21 March 2004 from the Canadian
Society of Muslims web site: http://muslim-canada.org/pfl.htm
Van Rhijn, Judy. First Steps Taken Towards Sharia Law in Canada. (25
November
2003). Originally published in the Law Times. Downloaded on 10 March
from
from the Vancouver Indymedia web site:
http://vancouver.indymedia.org/news/2003/11/87502.php
