Gender Equality in the Context of Minority Living by Syed Mumtaz Ali

Part II
Minority Living

4. Insha Allah, I will now respond to the second of the two major concerns referred to at the very beginning of my speech.  That concern is generally put to us in the form of a question, and that question, simply put, is:  Why is recognition of Muslim personal/family law so important (a) to Muslims, and (b) to Canada?  Incidental to this is the question: Why is it so difficult for non-Muslims to understand the crucial significance that Muslim family law has for Muslims?

In answering these questions, our intention is to deal with another aspect of Muslim personal law as it assumes a special significance for us Muslims living as a minority group and as it affects our interrelationship with other religious or secular communities, all forming part and parcel of the Canadian multicultural, multi-racial mosaic also appropriately designated as a community of communities'.

Minority Rights Under Islam

So in order to get a proper perspective, it would be appropriate to briefly examine the general approach of the Muslim judicial system when it comes to dealing with the question of minorities living in a Muslim state.  We can then relate this with our own situation and the treatment we receive under the secular judicial system of Canada.

Historically, it is important to note that in a very short period of the last ten years of the life of the holy Prophet p.b.u.h., all the people of the Arabian Peninsula and the southern regions of Iraq and Palestine had voluntarily embraced Islam.  Some Christian, Jewish and Parsi groups remained attached to their creeds, and they were granted liberty of conscience as well as judicial and juridical autonomy.  The Prophet left a new system of law, which dispensed impartial justice in which religious tolerance was so great that non-Muslim inhabitants of Muslim countries equally enjoyed not only complete juridical, judicial but also cultural autonomy.

Since such laws were established by the Prophet p.b.u.h. himself, in the name of God, so he could not abrogate them and neither can we even to this day.  Thus, what the Prophet p.b.u.h. did in this respect was in effect nothing but a judicial translation of an ideological coexistence that goes hand in hand with full integrity for all religious groups living within the Islamic state.  It is for this reason that in his work Islamic Law, Dr. Said Ramadan, quite correctly arrives at the conclusion that:

"Thus, religious differentiation in personal laws can by no means be characterized as discrimination because of religion."

This is the Islamic principle respecting minority rights.  Now, let us see how this principle is put into practice or properly implemented in daily life.  For this purpose, I would like to reproduce here two paragraphs as excerpts from Introduction to Islam by Dr. M. Hamidullah.  First, paragraph 321, "Administration of Justice":

"A characteristic feature of the Qur'anic legislation in this respect is the judicial autonomy accorded to different communities comprising the subjects.  Far from imposing the Qur'anic law on everybody, Islam admits and even encourages that every group, Christian, Jewish, Magian or other should have its own tribunals presided over by its own judges, in order to have its own laws applied in all branches of human affairs, civil as well as criminal.  If the parties to a dispute belong to different communities, a kind of private international law decides the conflict of laws.  Instead of seeking the absorption and assimilation of everybody in the ruling community, Islam protects the interests of all its subjects."

From the Qur'anic verses which prescribe judicial autonomy, two principles are explicitly established.  They are:
(1)  Judicial autonomy is prescribed for non-Muslim subjects according to their respective religions; and (2)  Islamic jurisdiction is, however, applicable to them whenever the two non-Muslim parties so choose. Neither in these verses nor in any other place in the Qur'an or the SUNNAH is there any authentic text that confines this judicial autonomy to personal behaviour or to inter group relations of non-Muslim communities. Rather, it tends to relieve non-Muslim subjects from any Islamic prohibition relating to matters which are permitted in their respective religions.  The best examples of this are intoxicants and pork.  The practice of the Prophet and that of all caliphs had been that whereas these are forbidden to Muslims, dhimmi subjects (i.e., non-Muslims living in a Muslim country as Protected Subjects') are permitted their free use and allowed to trade in them. Jurists differ, however, on two main points: (1)   The equal applicability (to Muslims and dhimmis) of the civil and penal laws of Islam in the absence of a contrary text in other religious codes. (2)   The status and role of Muslim jurisdiction in cases of conflicts of law.

It is easy to see from what has so far been said that Muslim law began as the law of a State and of a ruling community and served the purposes of the community when the Muslim rule grew in dimension and extended from the Atlantic to the Pacific.  It had an inherent capacity to develop and to adapt itself to the exigencies of the time and clime.  It has not lost its dynamism even today.

In fact, it is obtaining more and more recognition as an agency for good and for the sound judicial principles and juridical adoption both by the former Muslim colonial subjects of the suppressive Western political powers and by the non-Muslim countries alike.

Muslim Personal Law Autonomy
in Yugoslavia, Greece and Albania

However, it was not until the 10th of September and the 27th of November, 1919 and the 2nd of October, 1921, that a part of this judicial autonomy was granted to Muslim minorities in Yugoslavia, Greece and Albania and promises were made, under international pressure, treaties and declarations, that "suitable provision will be made in the case of Muslims for regulating family law and personal status in accordance with Muslim usage."  (As to this quote, Said Ramadan, in the footnote, refers to United Nations, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, document prepared for the First Session (24 Nov. to 6 Dec., 1947), U.N. Doc. 1/CN4/Sub. 2/6,7, Nov. 1947.  See also Oppenheim, International Law, I, p. 713.)  With the fall of the Russian Empire and the disintegration of Yugoslavia and the sorry state of the Balkan States, nobody knows what the situation is like these days.  Quite a number of countries in Asia and Africa in the past were able to achieve  a great deal of autonomy in the matters of personal/family law from the British, French and other colonial powers.

Muslim Jurisdiction

To complete the picture, I shall now reproduce paragraph 293 from Introduction to Islam, as promised earlier:

"The question of jurisdiction has also certain peculiarities.  Foreigners residing in the Islamic territory are subjected to Muslim jurisdiction, but not to Muslim law, because Islam tolerates on its territory a multiplicity of laws, with autonomous judiciary for each community.  A stranger would belong therefore to the jurisdiction of his own confessional tribunal.  If he is a Christian, Jew, or anything else, and if the other party to the litigation is also of the same confession (no matter whether this other party is a subject of the Muslim State or a stranger)  (the case is decided by the confessional court according to its own laws.)  Generally no distinction is made between civil and criminal cases with respect to this jurisdiction.  As for cases where the litigants belong to different communities, the question has already been discussed above.  However, it is always permissible under Muslim law (cf. Qur'an 5/42-50) for a non-Muslim to renounce this privilege and go before the Islamic tribunal, provided both parties to the suit agree.  In such an eventuality, the Islamic law is applied.  It is permissible for the Muslim judge to apply even foreign law, personal law of the parties to the case, as is evidenced from the practice of the Prophet:  Two Jews, guilty of adultery, were brought by their co-religionists, and the Prophet caused to bring the Bible (Book of Levitecus) and administered Jewish law to them, as is reported by Bukhari.  It may be mentioned by the way that the concern for legality has forced the Muslim jurists to admit that if a crime is committed, even against a Muslim, who is the subject of the Muslim State, by a foreigner in a foreign country, and this foreigner later comes peacefully to the Muslim territory, he will not be tried by the Islamic tribunals, which are not competent to hear a case that had taken place outside the territory of their jurisdiction.  Muslim jurists are unanimous on the point.

"This gives us a clear picture of how Islam incorporates its fundamental principle of tolerance and equality into its legal system and thus achieves a judicial translation of an ideological co-existence of all religious groups and practical manifestation of its cherished determination to protect the interests of all its subjects.  One does, however, concede that the theory and practice of later generations have not always been identical in Muslim society.  But while it should always be borne in mind, however, that a Muslim (like any other human being) may fail to live up to those human principles and moral principles, he never has the right to attribute his deviation to any Islamic principle, nor has he the right to justify that deviation on any political or economic pretext.  In other words, the de facto status of non-Muslim subjects might be one of unfair discrimination (as occasionally happened in the course of history) but their de jure status is always there in both the Qur'an and the Sunnah:  a status meeting the highest standards of equity and equality.  This de jure status is as stable as any Qur'anic or prophetic text could be, and every struggle for re-establishing it in practice in an Islamic State is thereby rendered a constitutional one.

"One should not forget," says Dr. Hamidullah, "the great practical importance attached to the fact that Muslims obey their system of law as something of Divine origin, and not merely the will of the majority of the leaders of the country."

Up to this point we have discussed the Islamic Law, its concept of equality and its treatment and protection of all its subjects in accordance with its legal philosophy of permitting, encouraging and enforcing, by legal sanctionsas well as its adherence to the principle and the concept of ideological co-existence of all religious groups.  We have also examined the de facto possibilities.
 

The United Nation's (UN's) Criteria and Standards of Equality or Non-Discrimination

But let us deal with another aspect first.  Does all this measure up to the modern standards of international criteria of equality as they prevail in today's society, particularly the Western society's?

For the sake of brevity and convenience, I will reproduce the relevant portion from Said Ramadan's Islamic Law dealing with this matter:

"In a report prepared by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, we find a comprehensive definition of the principles of equality, or non-discrimination, which we shall utilize here to probe the legal impact of religious distinction on the non-Muslim subjects of an Islamic State.

Says the report:

The principle of equality or non-discrimination implies the following two consequences.  In the first place the members of the minority have the right to the nationality of the State which exercises sovereignty over the territory where they reside.  In a modern State, the possession of nationality implies equal rights for all those possessing it.  Secondly discrimination de facto or de jure against minority elements is forbidden.

the only states with obligations concerning minorities over these obligations under international undertakings contracted by themselves.  These undertakings are of two kinds:  treaties or declarations made before the Council of the League of Nations.'

recognized in formal terms the principles of strict equality between individuals belonging to the minority element and others:  equality of all persons before the law, equal treatment de facto and de jure.'

"In a memorandum on the Definition and Classification of Minorities submitted by the secretary-general to the Sub-Commission, he admits the difficulties of giving a clear-cut definition of the term "minority" from a scientific point of view.'

Of all these characteristics, only that of religion is relevant to Islamic Law.  Furthermore, all distinctions made by Islamic Law on the basis of religion are far from the conception of 'minority' as interpreted and enacted in international documents "and undertakings."

We shall now try to apply the internationally agreed-upon criteria of equality (e.g., the right to nationality and equality before law both de facto and de jure), so as to probe the legal impact of religion on the scope of Islamic Law.  Still in line with our international criteria, let us go back to the memorandum of the Secretary-General of the United Nations on "Definition and Classification of Minorities."

Speaking on 'multi-national' states, he defined them as the states "formed by two or more nations, existing as different communities, each of which is aware of and desires to retain its own distinguishing characteristics."

He then divided them into two principal categories:

a) those in which the State reflects the culture of the predominant nation, whilst the other nations are considered as minorities; and

b) those which do not reflect the culture of a predominant nation, but are neutral in so far as the various nations submitted to their jurisdiction are concerned.  In the case of States in the latter category, it is impossible to speak of either a national majority or a national minority except from the purely numerical standpoint:  one may only speak of different national groups.

On the one hand, it is a state that reflects a predominant culture and thereby may belong to the first category.  But it is also, by virtue of its culture, a state that accords full social and judicial autonomy to every community living within its territory. Thus practising a kind of neutrality in so far as other religious communities are concerned.  Because of this, it definitely belongs to the second category.

This illustrates nicely the Secretary-General's statement that the categories, as divided above, are not rigid, but in many cases are quite fluid Thus, we may say that a state of the type prescribed by Islam can be characterized as a state which, while reflecting a predominant culture, accords full autonomy to the co-existing cultures within its dominance.  It follows that neither a national majority nor a national minority can conceivably exist in such a state except from a pure numerical standpoint. The Social World, (an article by Peter Li, p. 270). about the 'black' population of South Africa is a perfect example of this. Despite their great number constituting a numerical majority, the blacks were treated as a minority, even though the white numerical majority was, in reality, a minority. 

Summary of Minority Protection

1 For the inhabitants, protection of life and liberty and free exercise of religion without distinction of birth, nationality, language, race, or religion.

2 In general, for certain inhabitants, automatic acquisition, or just facilities for the acquisition of the nationality of the contracting state.

3 For the nationals, equality before the law and as to all civil and political rights, and as to the use of any language.

4 Freedom of organization for religious and education purposes.

5 State provision for the elementary instruction of their children through the medium of their own language in districts where a particular minority forms a considerable proportion of the population.

But Oppenheim had to admit (in spite of the twofold method of ensuring the observance of the minority clauses:

1) the contracting state's adoption of them in its fundamental laws, and

2) the guarantee of the League of Nations to such obligations of international concern) that the implementation of the system of protection of minorities was affected by the progressive weakening of the political structure of the League.  He further opined that "so long as the general protection of fundamental human rights, through indisputably binding obligations under the aegis of the United Nations and otherwise, has not become part of law, there seems to be a need for the protection of minorities, through special treaties."

By virtue of its basic principles, Islam not only discarded the very concepts of "majority" and "minority" as contrary to the principle of the equality of all men before Divine justice, but it further administered this justice in terms of positive law which is applicable to all citizens, except in cases where the probity of conscience demands a specific differentiation based upon reciprocal rights and duties.

Furthermore, "the general protection of fundamental human rights" which Oppenheim and others hope to have enacted as part of municipal laws conceivably "through indisputably binding obligations under the aegis of the United Nations" (after the generally admitted ineffectiveness of the League of Nations) were ( more than thirteen centuries ago) both introduced and sanctioned as part of the fundamental laws of Islam.

The Other Side of the Coin

Our discussion of the subject so far related to the situation of non-Muslim communities living in a Muslim country.  This is one side of the coin.  Let us now turn the coin and deal with the other side, namely, what is the situation thar relates to Muslim communities (minorities) living in non-Muslim/secular countries?

Generally speaking, it is an undeniable fact that the quality of minoritie in a country governed by majority rule depends not only on the philosophy of life conceived (i.e., theory), but also how it is practised (i.e., implementation of the theory).  Almost every society, civilization or people of a country in the world provide some form of guaranty for the theoretical legal equality of all its people or citizens, be it in the form of Charter of Rights and Freedoms, or Bill of Rights, or documents of constitutional or religious declarations that contain very high-sounding platitudes, but the proof of the pudding is always in the eating, as the expression goes.  The litmus test of all philosophy is in its implementation, and of course the level of success in implementation depends on the quality, sincerity and commitment of the people (i.e., the majority of the legislative representative of the governing political party, in the non-Islamic context) to effectively implement the policy of equality for all citizens without discrimination or preference.  For this reason, some countries fare well in this respect and some fare not so well, whereas some even fail miserably.

In the barnyard of a democratic and multicultural Canada, some are more equal than others.

The international criteria of equality which we have applied to the treatment of non-Muslim communities in a Muslim state, obviously apply to Canada as well.  With this yardstick of measurement, Canada as a country that is committed to multi-cultural and multi-racial philosophy fares well in the scale of things which reflect the de jure position of the modern Canadian society.

However, when it comes to implementation of its multi-\cultural commitments, there is much to be desired and done on the Canadian scene in order to claim equality before the law for all its citizens, particularly minority groups who are of of all colour\ and stripes.  The most obvious case is the situation where certain groups of minorities such as Francophones or Aboriginal Indians do enjoy autonomy of their legal systems, whereas certain others such as Muslim, Hindu, Sikh, Jewish and Parsi communities are deprived of this privilege of equal treatment when it comes to recognition of their personal/family laws.
 

For the Muslim community, the issue of personal law carries an extraordinary and a critical significance which may or may not be the case with other minority groups.

We have tried to stress this point by way of an example or a case study relating to obstacles in the way of the Freedom of Religion that have been guaranteed by the Canadian Constitution's Charter of Rights and Freedoms.  In a report entitled Oh! Canada! Whose Land, Whose Dream?, which was a discussion paper containing many suggestions for constitutional reforms, The Canadian Society of Muslims put it this way:

With this purpose in mind, I would, Insha Allah, do two things:

(a) give you the gist of why or how Muslim personal law is so important to us, and

(b) explain simultaneously why it is so difficult for the Western society to understand the crucial nature of the concern of Muslims living in non-Muslim countries like Canada, for instance.

A Critical Situation:
The Grave Nature of Shirk

Rather than doing this in my own clumsy fashion, I have chosen to accomplish my purpose by giving you an excerpt from the introduction to the book Islamic Law by Said Ramadan.  This introduction was written by no less a representative of Muslims than a man known as A.K. Brohi, Advocate, Supreme Court of Pakistan and former Minister of Law, and a scholar of Islamic law:

"The trouble is that it is impossible even for the most enlightened Europeans who are begotten and bred in a secularist culture (which, in its turn, is the offspring of the alleged saying of Christ, "Render unto Caesar what is Caesar's and to God what is God's" to meaningfully understand that a Muslim totally surrenders himself at the altar of the Divine Will as it is expressed by the Divine Law (and he is called upon to refer every act of his being to a comprehensive Divine setting:  his declaration of faith enjoins upon him to say: "Indeed my prayers, my very sacrifice, my life and my death is for the Lord of the worlds Who hath no compeer" this I am commanded to do, and I am the first of Muslims' (Chap. 6, V:163-4).  Such is the decree that to the extent that I do anything for God and in His Holy name. I am in the Islamic camp.

Dr. Muhammad Iqbal complained  as far back as 1930 in his famous lectures on "The critics of Islam"
(in his book "Reconstruction of Religious Thought in Islam) "have lost sight of this important consideration.  The ultimate reality, according to the Qur'an, is spiritual and its life consists in its temporal activity.  The spirit finds its opportunities in the natural, the material, the secular.  All that is secular is therefore sacred in the roots of its being.  There is no such thing as the profane world. All this immensity of matter constitutes a scope for the self realization of spirit.  All is holy ground.  As the Prophet so beautifully puts it:  "The whole of this Earth is a mosque."

The state, according to Islam, is only an effort to realize the spiritual in human organization.'

"It is difficult for a Western scholar to become fully conscious of this claim of Islam namely, that the authority of "the King, Lord and Master of this Universe'"is not to be partitioned between the conflicting claims of 'Caesar' and 'God'.  You cannot bring partners to share God's authority with Him.  For the Muslim, that is the most unforgivable of all the derelictions of religious duties.

Such is the grave and critical nature of shirk in Islam.  So all law has to be sanctioned by the Divine Will (Including the law) stemming from human activity, provided it is within the limits prescribed by the Divine.  But this is not the same thing as saying that the entirety of the law of Islam is immutable, static and unprogressive.

If one were at all pressed to define for oneself those features that distinguish the approach of Islam from that of Christianity to the problems of organizing a socio-political order under the aegis of law, the following observations of Dr. Iqbal, which follow immediately after those cited above from his lecture on 'The Principle of Movement in the Structure of Islam', might be of considerable assistance. "Primitive Christianity," he says, "was founded not as a political or civil unit but as a monastic order in a profane world, having nothing to do with civil affairs, and obeying the Roman authority practically in all matters.  The result of this was that when the state became Christian, state and church confronted one another as distinct powers and interminable boundary disputes arose between them.  Such a thing would never happen in Islam for Islam was from the beginning a civil society having received from the Qur'an a set of simple principles which like the twelve tables of the Romans, carried, as experience subsequently proved, great potentialities of expansion and development by interpretation' (emphasis supplied by the writer)."

The Qur'an is very clear on this point:

They have no protector other than He; nor does He share His Command with any person whatsoever." (Qur'an18:26)\

Follow that which is sent down unto you (i.e., the law) from your Lord, and follow no protecting friends besides Him."

So, my brothers and sisters, this is the position of Muslim family law vis-a-vis for non-Muslim majority governments like in Canada.

The Choice is Yours Alone

As to the crucial importance of Muslim personal law vis-a-vis the Muslim minority community of Canada, the case is clear and straightforward. It is your choice. Do you want to govern yourself by the personal law of your own religion, or do you prefer to be governed by the secular Canadian family law?

Maulana Muhammad Taqi Amini puts it this way in his Urdu book entitled Ahkam-e-Sharia'h Mein Halat Wa Zamane Ki Rihyat.  Here is a paraphrase of the gist of what he says, rather than a literal translation of the passage: There is no denying the fact that one has to have the courage of sincere conviction to choose only one of the two possibilities of conviction:

Either:

1 Like other religions, Islam to you means nothing more to you than certain prescribed rituals of worship and sacred devotional practices, and that it has nothing to do with the conditions, circumstances and day-to-day affairs of human life.

or:

2 What Islam means to you is a complete code of life that is capable of providing guidance for all times and climes. That is, for all circumstances and for every condition of human life all the time.

If you exercise your option or choice in favour of the first conviction, then there is nothing much to be said about it except that you are perfectly within your God-given right to make this choice (since there is no compulsion in Islam).

But a person who subscribes to this way of life and holds such a conviction does not have the moral right to claim that he believes that Islam is a religion or code of life that was brought about or promulgated by a Prophet whom you believe to be a mercy or blessing to all humanity (i.e., all generations of the past, present and future) and all the universe.

"If your choice is in favour of the second option, then you must accept the necessary logical consequence that, in following Islamic principles and precepts, one must obey the law (or follow a course of action for this purpose) with due regard to the latitude and flexibility for adaptation to the changing times and circumstances.  And for the survival and establishment of an Islamic way of life, one must, out of sheer necessity, seek ways and means as to how one may be able to cope with new and changing situations."

Most countries of Europe or America are not antagonistic to religion now, but Canada stands head and shoulders above all of them all when it comes to leading the pack in liberal mindedness and the co-existence of all and sundry.

If we were living in a country where religion and religious ways of life were condemned, suppressed or merely ignored, for all intents and purposes, or where Muslims were persecuted, then I would say, our responsibility for at least making an effort to persuade the governmental authorities to see the fairness of our expectations and hopes would be diminished in proportion to the prevailing degree of persecution or suppression and other negative consequences.

With this final remark, I appeal to you to seriously consider your position in relation to this Muslim Personal/Family Law Campaign in Canada. Search your soul and consult your heart in addition to seeking help from your rational faculties. Then decide whether you would like to support the Canadian Society of Muslims' efforts in that direction.

In conclusion,  it will be only fair and reasonable for men and women who are free in the exercise of their option to prefer the first choice over the second, or vice versa, to owe to the others the same courtesy of tolerance and understanding as they expect from the others.

As decent, civilized and cultured human beings, each group must refrain itself from resorting to questionable tactics, all in the name of religion, or to put obstacles and roadblocks in the path of the other group's legitimate, democratic pursuits.

Misguided and Misconceived Notions of Unity

Furthermore, it is high time for all to realize the sad fact that too many Muslims suffer from certain misguided and misconceived notions about the 'unity' of Muslims and the 'unity' of Canadians.  A healthy, legitimate and permissible difference of opinion and exercise of freedom of expression, discussion and debate serve to strengthen the unity of Muslims as Canadians (they are not the forces to undermine it.)

To our way of thinking, it is adherence to the core principles of a society that constitutes unity, Differences in adherence to the details of a secondary nature emanating from those core principles do not disintegrate or destroy that unity.  Quite the contrary is the case:

a) diversity of details augments and serves to support the unity of principles.
b) In the Islamic context, adherence to any of the four diverse schools of thought in Fiqh does not disintegrate the unity of Sunnis, nor does it destroy the unity of Muslims. Similarly, on the Canadian scene, diversity of Francophone and Aboriginal native peoples has not destroyed the unity of Canadians, and an extension of this principle of ideological co-existence to many a new cultural or religious community of immigrants is not going to disintegrate Canadian unity, nor would it create legal chaos.

The history of human civilization and the history of Canada has convincingly proved that!

To recognize and establish the autonomy of personal laws of those communities or groups (minorities) who desire to retain their own distinguishing characteristics (e.g. religio-cultural) is an international obligation imposed by the United Nations Organization's Sub-Commis?sion on Prevention of Prejudice and Protection of Minorities.

For Muslims, living as a minority group in Canada, it is our natural, religious right, granted both under the authority of the national Canadian Charter of Rights and Freedoms and under the international authority of the United Nations Organization.

We do have this right on paper.  However, we must acquire the right to exercise it in practical life.  Law-makers only bestow rights (it is not for them to force you to exercise those rights or fight for acquiring the ability to exercise them from the Executive Branch of the Government

Wa-al-salam-alaikum.