Why was the Institute Formed?
by Syed Mumtaz Ali

"Muslim Personal law is a part of the religious structure of
Islam and no non-Muslim government has the right to interfere with it.
Muslims living under non-Muslim systems are, as such, required to make
every possible effort for the recognition of this principle by their
governments. They may also take steps to set up, under the aegis of the
Shariat, a separate arrangement of their own for the management of such
problems of their individual and social concern as cannot otherwise by
taken care of adequately in a non-Muslim State."

For this purpose it seems logical to begin with a brief discussion of the four fundamental principles, rights, and obligations enshrined in the Charter of Rights and Freedoms (Part I of the Canadian Constitution Act, 1982).  The fifth principle of judicial autonomy is complementary to and is derived from the said four principles of 1. Religious freedom (s.2); 2. equality before and under the law (s.15); 3. multiculturalism (s.27); 4. protection from cruel and unusual treatment and punishment (s.12).

Let us then start with the preamble in the constitution. It stipulates: “Canada is founded upon principles that recognize the supremacy of God and the rule of law.”  As the significance of God and His supremacy mentioned there becomes quite apparent in the context of religion; we shall deal with the freedom of religion in some detail.

Section (2) of the Charter says:  “Everyone has the following fundamental freedoms:  a) freedom of conscience and religion; b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication, c) freedom of peaceful assembly, and d) freedom of association.

According to Webster’s Dictionary “freedom” is defined as enjoyment of civil liberties.

The British Columbia Court of Appeal in its decision (1985 1 S.C.R. 295 at 336-337) deals with it in this way:

“The essence of the concept of freedom of religion is a) the right to entertain such religious beliefs as a person chooses; b) the right to declare religious beliefs openly and without fear of hindrance or reprisal, and c) the right to MANIFEST religious beliefs by WORSHIP and PRACTICE or by d) teaching, and e) dissemination.”

“Freedom in a broad sense embraces both the right to manifest beliefs and practice and the absence of coercion and constraint.  Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.” 

The court further goes on to state:

“One of the major purposes of the Charter is to protect within reason, from compulsion or restraint.”

The Qur'an is very explicit with regards to the revealed law being the root-source of all activities. See chapter 7, verse 3: 

“Oh people!  Follow what has been sent down to you [The Law] from your Lord, and do not go behind other masters, leaving Him.  Very little you understand.” 

“…And whatsoever the Messenger gives you, take it, [the Law] and whatsoever he forbids you, abstain from that.  And fear Allah; undoubtedly, the torment of Allah is severe.”

“And if you fear a dispute between husband and wife, then appoint an arbiter from the side of the family of man and an arbiter from the side of the family of woman, if these two desire reconciliation, then Allah will cause unity between them.  Undoubtedly, Allah is Knowing, Aware.”

Again and again Muslims are informed in the Qur'an that one cannot consider oneself a Muslim – one who surrenders to the Will of God expressed through His Divine Law – unless one adheres to the guidelines, counsel, principles, beliefs, and practices that are related to human beings through the Qur'an and the Prophet Muhammad (pbuh).  In other words, religion must be lived and it must be put into practice.  It must be followed and adhered to with one’s actions.

Muslim personal family law is an integral part of the Muslim law.  It is not an arbitrary afterthought that has been tacked onto Islamic religious beliefs and practices. Consequently, if Muslims are prevented from implementing such laws, they are then prevented from freely pursuing and committing themselves to the Islamic religious tradition (i.e; there are 70 injunctions in the Qur'an and about the same in the Sunnah.) Former British colonies, e.g. India, therefore, had Muslim law integrated into the general British legal system. 

Canada was also a British colony, but since there were no significant number of Muslims living in this country, Muslim personal law was never incorporated into the Canadian legal system. 

Now that Muslims constitute the largest religious minority, it has become extremely frustrating not to be able to govern their personal life in accordance with the Muslim personal/family law injunctions. 

Take for instance the untenable situation that Muslims were unable to and are still unable to use the secular Canadian Courts for implementation of Muslim personal law in the same way, as they were able to use British colonial legal systems to satisfy their religious needs.  Even now, for instance, Muslim clergy are not able to take part in the secular court system.  As a result the Muslim clergy in Canada have no concern and take no part in the Canadian Courts’ arbitration of property matters and divorce.  Although there is a very comprehensive and complete body of jurisprudence as to what happens to spouses’ property; custody, access, and other rights upon marital breakdown, there is no religious court system for Canadian Muslims where they could turn to, to seek recourse and have their laws implemented.

It was for these reasons that we felt as early as 1991 [and still do], that Muslims were and still are compelled by the state and its judicial system to a course of action, or inaction, as defined by the British Colombia Court of Appeal (living at the mercy of the secular court) which they would not otherwise have chosen and as such Canadian Muslims are not acting of their own volition and they cannot be said to be truly free. This is in fact unmitigated coercion and constraint. The court has clearly set the criteria when it said,  “Freedom can primarily be characterized by the absence of coercion, or constraint.”  Indeed, “coercion includes not only such blatant forms of compulsion as distinct commands to act or refrain from acting on pain of sanction.  Coercion includes indirect forms of control, which determine or limit alternative courses of conduct available to others. In short, not being able to live by Muslim law means one cannot exercise freedom of religion guaranteed under the Charter.

As the appellate court has indicated clearly, “One of the major purposes of the Charter is to protect, within limits, from compulsion or restraint.”

Relying on this protection and the guaranteed right of freedom of religion (section 2 of the Charter) along with the Ontario Arbitration Act which provides that the parties to a dispute may appoint an arbitrator by mutual consent and instruct him to “apply the rules of law designated by the parties,” [section 32 (1)] or even by contractual arrangement to do so without seeking recourse to the Arbitration Act, the Canadian Society of Muslims decided to incorporate the “Islamic Institute of Civil Justice and the Muslim Court of Arbitration” as an alternate cultural dispute resolution system. By establishing such facilities Muslims have provided for themselves a way of doing things that reflects fundamental aspects of their sense of justice and the freedom to “practice” their religion, unhindered. They may resolve their family law disputes in conformity to the customs, traditions and rules of their own communities. There is nothing preventing Muslims from setting up such court or courts. Other cultural communities like the Francophones, the Jewish people and the aboriginal communities have been using their civil law courts and religious courts of Beth Din and Rabbinical courts for a long time.

Under the guaranteed equality rights of the Charter (section 15) Muslims are fully entitled to be given equal treatment “before and under the law and have the right to equal protection and equal benefit of the law without discrimination, and in particular without discrimination based on race, national or ethnic origin, colour, RELIGION, sex, age, or mental or physical disability.”

Muslims want to live in accordance with their own religious laws, as they are commanded by the Qur'an and the Prophet Muhammad (pbuh).  They do not want the bother of the secular Canadian Court (since they are not forced to go to Canadian Courts even by Canadian laws), nor do they want to live at the whim of the secular judges who do not have the required qualification, training and experience to understand the fine points, sensitivities and nuances of particular cultural /religious problems arising from family law disputes e.g. custody and other such problems. However, “Canadian family law can mature into a truly sensitive multicultural model of alternative “cultural” dispute resolution,” as observed by John Syrash in his “Religion and Culture in Canadian Family Law” (p.93).

It is understandably more appealing for the strife-ridden parties to explain and resolve their differences before a co-religionist, rather than before a non-Muslim, secular court, especially in matters of custody and access where Muslim law provisions dealing with such sensitive issues are founded on a different philosophical base and extended family system. Secular judges may not have sufficient interest or the ability to gauge the sensitivities of Muslim litigants in such specific issues.  The above noted author actually relates that in his experience, secular “judges often struggle to avoid making any ruling to resolve differences within a religion over practices or conduct.  Such ‘excessive’ entanglements in religious matters “is frequently cited by the Court as being an area that it wishes to avoid.”

If such matters go before a Muslim Court of Arbitration, one could avoid the need to obtain a formal decision by a secular court.  Accommodation between parties may take the form of counselling and “spiritual therapy” which may be expressed in the form of marriage or separation counselling.  Moreover, parties seeking recourse from a Muslim Court of arbitration are likely to be more inclined towards compromise and reconciliation as the decision of such a court is bound to be viewed as “their own” rather than from a judge who derives his authority and training (i.e. days or weeks rather than years and years), less anxious, much less extensive involvement of lawyers, and a better chance of leaving the former marriage.

Furthermore, by providing alternate methods of cultural dispute resolution through a Muslim Court of justice, for instance, Muslims would be shown that the promise of multiculturalism, when properly implemented, is capable of creating conditions that are conducive to the generation of peace of mind and happiness that can come with a true religious and cultural autonomy and equality.  Rather than feeling alienated within Canada, Muslims would become integrated and active participants in the Canadian mosaic.

By successfully avoiding the kind of coercion and restraint which is tantamount to the denial of freedom of religion, as explained in the B.C. Appellate Court decision referred to above. Thus Muslims will be able to secure protection from  the kind of “cruel and unusual treatment and punishment” which is already envisaged by Section (12) of the Charter. Every Canadian has the right not to be subjected to the kind of cruel and unusual treatment that is intrinsically dished out to Muslims in this way. 

Finally, as to the fifth principle of judicial autonomy, it has already been stated earlier that this principle is really a complementary principle, which is derived from the above-noted four principles and it accords with the true spirit and the general philosophy of multiculturalism, co-existence and equality underlying the whole scheme of the Charter.

As to the Islamic context, suffice it to say that in his lifetime, Prophet Muhammad (pbuh) resolved beautifully the concerns and conflicts of non-Muslim minorities by applying Christian laws to Christians, Jewish laws to Jews, Parsi laws to Parsi's, etc. This was done through their own respective judicial tribunals appointed by themselves as separate minority groups.  Thus what the Prophet (pbuh) did in this respect was in effect a judicial translation of an ideological co-existence that goes hand in hand with full integrity for all minority religious groups living within the Islamic state.

In a multicultural society, like Canada, who can find a better solution than that, for as the English author, William Blake, succinctly stated in the late 1700’s: “One law for the lion and the ox is oppression.”