In the name of God, the Most Beneficent, the All-Merciful
Syed Mumtaz Ali, President of the Canadian Society of Muslims
A Word
from the President...
Every religion in the beginning is a minority affair. The Prophet of Islam and the early Muslims suffered persecution and made Hijrah (migration) to Medina where they established the first Islamic state within a territory not exceeding a few kilometres. In the dozen remaining years of his life, through armed conflict, diplomacy and statesmanship, the Prophet ruled over more than a million square kilometres of territory which included the whole of the Peninsula of Arabia and southern parts of Iraq and Palestine. Hardly fifteen years after his death, by the time of Caliph Uthman, the Prophet's followers ruled over three continents. They later entered Europe and expanded their domains in Asia and Africa. 

These are the words of Dr. M. Hamidullah of Paris, France, which appeared in a recent issue of the Journal of the Institute of Muslim Minority Affairs.

These words remind me of Al murhoom Dr. M. Qadeer Baig, r.a., who would often reassure us, in the same vein, saying that "after all, Islam began with a minority of one [i.e., the Prophet (pbuh)] -- the smallest possible minority!" These words always came with a delightful smile and a peculiar sparkle of joy in his eyes. "There is only one way to change the world really." To paraphrase his words of wisdom, he would continue on to say that "you can change it only by reforming its inhabitants individually, one by one, and one at a time. The individual with whom the reform must begin is that individual who has the ambition to reform the whole world. In other words, first change yourself, then change the world." 

Having spent a good part of his life in England and Canada, Dr. Baig was acutely aware of the difficulties inherent in Muslim minority living. He dedicated his life to the task of solving problems and resolving conflicts between the Muslim and the non-Muslim way of life. He was fully conscious of the fact that solving problems was not the only rule alone to be used in measuring the propriety of various modes of conflict resolution. For Muslims, the sine qua non or crucial element of action is that it be undertaken with the intention of submitting oneself to Allah's will--such that the action is done for the sake of Allah, as an expression of worship and love for Him. If the governmental authorities and judicial system of a non-Muslim country have methods of conflict resolution that are rooted in principles and values that are governed by motives other than the intention to please God, or which do not serve the best interest of the Muslim community, or which contain less wisdom than do the guidelines which have been given by Allah and His Prophet, then Muslims place their spiritual and social lives in dire peril when they submit to that which is other than what Allah has ordained for those who wish to submit themselves to Him. 

Many guidelines have been given to us concerning the manner in which matters of Personal Family Law should be conducted. These guidelines are vouchsafed to us in the holy Qur'an and embodied through the teachings and actions of the Prophet Muhammad (pbuh). Dr. Baig maintained and insisted, therefore, that it is an obligation for Muslims, both collectively and individually, to seek to establish an environment which is feasible and practical in a non-Muslim country and conducive to living in accordance with the way in which Allah would wish Muslims to live. 

History of the 'Campaign' 

First Stage

In 1986, Dr. Baig decided to take the initiative, for the above-mentioned reasons, to put forward a proposal to the Ontario Courts Inquiry (known as the Zuber Commission). He suggested, in effect, that recognition of Muslim Personal Law be taken into consideration. This was done by the Legal Affairs Committee of the Canadian Society of Muslims. Dr. Baig himself drafted or personally helped in drafting the letter, and had it delivered to the legal counsel who had undertaken to submit it to the Zuber Commission. 

The Zuber Commission's Report was released in 1989. Included among its many recommendations to the Ontario government was a recommendation to recognize the need for establishing an Alternate (method) of Dispute Resolution (ADR) by way of (a) mediation and (b) arbitration. Dr. Baig passed away in 1988, and thus ended the first stage of the campaign. 

He now belongs to a much better world blessed with a much closer proximity to the Almighty Lord Himself, Insha'Allah. We all pray and request you to join us in prayers that may Allah (SWT) grant the soul of Dr. Baig higher and higher levels of grace, mercy and blessings. May Allah enable us to carry on Allah's work which Dr. Baig had initiated and has left for us to continue. 

Second Stage

The present incumbent, in his capacity as President, continues his work. Accordingly, various activities were set in motion beginning with a speech on the occasion of Milad-al-Nabi in Toronto in 1990. A few months later, in May 1991, a very comprehensive discussion paper under the title of Oh! Canada! Whose Land, Whose Dream? was published. This coincided in time with the ongoing debate for amending the constitution of Canada. This same paper (166 pages) was submitted to the federal as well as provincial governments and their agencies. The media, both audio and visual, academia, and a good section of the general public, also received this paper/report. The response from all these sources gave us the opportunity to air our difficulties and put forward our plea for some form of official recognition and implementation of Muslim Personal Family Law. 

More information is available for those who wish to pursue the matter further by requesting some of our publications dealing with this subject. 

Third Stage

In early 1994, the Ontario government established a Task Force, under the Chairmanship of Mr. Justice Blair, to review the Ontario Civil Justice System. Two Briefs were submitted to this Task Force--one in June and one in July. A four-page executive summary of the Brief is included in this Web site. 

An Interim Report of the Civil Justice Review Task Force has been released recently. This Report also recommends, among other things, implementation of an Alternate Dispute Resolution (A.D.R.) System. It does not contain any specific recommendation for using arbitration together with mediation methods. To us, this amounts to providing a half-baked half loaf of bread to those who can only be satisfied with a fully-baked whole loaf! [However, it should be pointed out that a pilot project of court-attached A.D.R. by way of mediation only is now running in Toronto on a trial basis.] 

We need A.D.R. by arbitration method rather than mediation, to adequately fulfil our needs. And we need this mainly for two reasons: 

1. Through arbitration, we will be able to decide our family law matters according to the Muslim Personal/Family Law. 

2. Arbitration decisions are final in that they do not need formal court approval in the same way as is required in mediation cases. 

In order to retain court connection, we will be able to file/register the Arbitration Award (i.e., decision) with the court. This would enable one to use the judicial/court administrative machinery for enforcement and implementation of Muslim arbitration decisions (awards). This is an advantage available only to court-connected arbitrations. Independent arbitrations (i.e., not court-connected) do not have this advantage. 

Now we have no choice but to wait for the other proverbial shoe to drop, as the expression goes, and see what the promised final report will bring for us. What do we do after that, therefore, really depends on what we get from the awaited final report. 

    The Goverment of Ontario has now made it mandatory (Feb. 1997) that all civil litigation (with the exception of family law) must go to mediation as a prerequisite to a trial by court. (The Toronto Star, Feb. 4 & 5, 1997) However, it must be pointed out that as to Family Law matters, although it is not mandatory, the parties by mutual consent could approach the court after filing their case for permission to refer the matter to mediation/arbitration on a voluntary basis. Considering the general atmosphere and favourable climate in favour of Alternate Dispute Resolution (A.D.R.), it seems the courts are likely to be only too pleased to let the litigants have all their dirty linen laundered in a private mediative/arbitrative setting rather than the public forum setting of an open court. The Canadian Society of Muslims (CSM) takes note of these developments with a sense of pride that our efforts in Stage 3 of our campaign, which was commenced a long time ago, (see Executive Summary for background information) are coming to fruition, albeit in a limited way. As an example we are reproducing here a report from The Toronto Star from 1991 and also the latest report from the Ontario Lawyers Gazette (Jan/Feb. 1997) concerning the new ADR legislation. This will also give you the CSM perspective and the necessary background information to explain why Ontario's decision re: ADR puts us on the road to march towards our goal of making arbitration on family law matters an essential part of the total ADR system:

    Muslims seek jurisdiction over family law
    by Michael McAteer
    The Toronto Star, 30 May 1991
Canadian Muslims should have their own arbitration boards to allow them to govern themselves according to Islamic law on such issues as marriage and divorce, a national Muslim groups says. 

The Islamic arbitration boards would also deal with family problems such as separation, inheritance, child support and maintenance. 

The 160-page report released yesterday by the Canadian Society of Muslims says official recognition by municipal, provincial and federal governments of Islamic arbitration boards would only enhance Canada's cultural richness. 

The report also calls for changes in provincial laws so that Muslims can redirect their educational tax dollars to separate Islamic schools with their own curricula. 

The report also calls for changes in provincial laws so that Muslims can redirect their educational tax dollars to separate Islamic schools with their own curricula. 

The report says Muslims are free to start their own private educational system but they are not permitted access to their public education taxes to set up their own religious schools. 

Clearly, the report says, this points out that the religious freedom of a great many Canadians, Muslims included, has been "seriously circumscribed and inhibited." 

Other religious groups such as the Associated Hebrew Schools and evangelical groups also seek authority to redirect publicly paid education tax dollars into religious schools. But Roman Catholics are the only religious group in Ontario that now do so. 

Society president Syed Mumtaz Ali told The Star that Islamic arbitration boards would have jurisdiction only over those Muslims who register themselves as wanting to be governed by Muslim law. 

He said there would be built-in safeguards to ensure there was no conflict with secular law. 

Disputes would first go to a secular court that would turn them over to the Islamic arbitration boards for a ruling, and the ruling would then be subject to the approval of a secular court, he said. 

Permitting alternative methods of resolving disputes in matters of family-personal law would provide Muslims with a "way of doing things that reflects fundamental aspects of their sense of justice," the report says. 

The Muslim groups says the report, called Oh! Canada! Whose Land, Whose Dream?, was written because the Society believes "many of the political practices, institutions and processes which exist in Canada fall short of the promise and potential that democratic theory has for meeting the social and political needs of a truly multicultural society." 

Mere tinkering with the Canadian Constitution will not serve the best interest of Canada or Canadians, the report says. Radical reconstruction is necessary but "such reconstruction must be built upon a thoroughly democratic foundation." 

The report, offered as a "constructive contribution to the debate concerning constitutional issues facing Canada," deals with such subjects as democracy, sovereignty and participation in a multicultural Canada. 

Although Canada prides itself on being a nation in which individuals are free to commit themselves to a religion of their choice without interference from the government, in practice "this is not always the case." 

The report notes that following divine law is at the heart of what being a Muslim means. That law allows a Muslim to have four wives. 

But Ali, a retired lawyer, told The Star there is no push to amend Canadian law forbidding polygamy. 

Like other Muslims, when I came to Canada as an immigrant and accepted citizenship I acknowledged that I would be willing to be governed by the fundamental principles of this country," he said. "The practice of monogamy is a fundamental concept of this society." 

We hope the obstacles involving overlapping of Provincial-Federal restrictions will soon be overcome, and the Provincial government will be able to make reference to Mediation mandatory in matters of Family Law in the same manner as it has done in relation to all other civil litigation matters.

Excerpt from "Ontario Lawyers Gazette" Jan/Feb, 1997.

Province announces mandatory mediation process

Lawyers are just beginning to digest the implication of Attorney General Charles Harnick's recent announcement that all civil non-family cases in Ontario will be referred to a mandatory mediation process. 

Mandatory referral to mediation is scheduled to be in place in Ottawa in the next few weeks and will be implemented in Toronto at the beginning of June. It will be phased in across the province over the next four years. 

The Law Society will endeavour to keep members informed about practice issues that will arise from mandatory mediation. 

The following summary of the key points of mandatory mediation was prepared by the Ministry of the Attorney General: 

Mediation will be a requirement in the rules of civil procedure. Civil (non-family) cases will be referred to a three-hour mandatory mediation session. Mediation must take place after filing of the first statement of defence. Time extensions for mediation must be approved by the court. Litigants who want to opt out of mediation require approval of the court. Mediations must be conducted by mediators from an approved roster. Parties will be able to select the mediator they want from the roster. With the approval of the court, litigants can chooses a mediator who is not on the roster. Mediators will be from the private sector. Mediators will not have to be lawyers to be on the roster. Mandatory mediation sessions will be three hours long. Sessions can last longer than three hours if all parties agree. If a settlement cannot be reached during mediation, the case continues through the litigation process. Alternative dispute resolution (ADR) committees will be set locally to manage the mandatory mediation process. Local ADR committees will be responsible for: (a) ensuring that communities are receiving the mediation services they need; (b) applying the standards approved by the Attorney General and the Chief Justice in appointing roster mediators; (c) establishing, managing and monitoring the local roster of mediators; (d) setting local tariffs up to a maximum of $300 per party for the mandatory, three-hour session and one additional hour of preparation time; (e) responding to public concerns or complaints. The local ADR committee members will be drawn from: (a) members of the public (including those who use the court system); (b) mediators; members of the legal profession who act for litigants; (c) the judiciary; (d) the Ministry of the Attorney General; Mediators on the roster will be required to have appropriate training and experience and must be familiar with the civil dispute process. Standards for the mediators will be approved by the Chief Justice of the Ontario Court of Justice and the Attorney General. If a party cannot afford the costs of mediation, arrangements will be made for mediation services to be provided free of cost. To be approved for the roster, mediators must agree to provide some services free of charge. Mediations are private and confidential between the parties. 

To provide more information on this subject, we have included in this web site, an Interview entitled 'A Review of the Muslim Personal Law Campaign'. 

Also, bearing in mind the general utility considerations of our publications, we are including in this web site a reprint of the Family Planning article, courtesy of Hamdard Islamicus of Pakistan. 

For a few articles in this web site, it was decided to concentrate on reproducing material by way of using selected excerpts with proper citations, rather than paraphrasing, condensing or abridging the contents of the original articles. The idea is to leave intact, as much as possible, the charming style and the diction, the effectiveness and the power and credibility of the lucid and authoritative arguments coming from some well-known scholars of a relatively recent era. For the same reason, for instance, the old style of writing prevailing in the times of Fataawa-e-Alamgiri and Hedaya, as reflected in the English translation of B.E. Baillie, has also been allowed to remain unaltered even through the editing process. 

In short, our objective is to promote interest and understanding of the Islamic way of life, whether it is by way of contributing through writing our own original articles or through co-operating with other authors and institutions by unhesitatingly borrowing from those reputable sources. With this purpose in mind, it was felt that we must endeavour as much as possible to attend to the needs of various segments of society. 

It is interesting to note the compelling reasons that give us the impetus to fulfil our mandate are so similar to what prompted two highly regarded scholars of our era to write on the fundamentals of Islam in a down-to-earth, modernistic style which has appealed to so many people. The magnetic attraction of their message has indeed made them the most popular scholars among the Muslim and non-Muslim community alike. We thought we might as well let you hear what they themselves had to say about this in their own unique fashion and in their own simple words. 

From Maulana M. Manzoor Nomani in What Islam Is

"Should it be possible for the holy Prophet (peace be upon him) to be sent down into the world once again by God, what would his reaction be on seeing the conduct and behaviour and the general design of life of the community that passes today by the name of Muslim? And what advice and command would he give to such of his followers who still possess in their hearts some solicitude for Faith and whose souls have not yet got frozen to Islam? 

"Without the least hesitation I can say that he will be extremely pained at the spectacle of utter moral and spiritual degeneration of the bulk of Muslims present these days, as much as he was by the brutal treatment meted out to him by the people of Taif or by the savage assaults made by the callous polytheists of Ohud. And his message to earnest and devoted Muslims who are blessed with a genuine concern for Faith will be to dedicate themselves whole-heartedly to the task of improving and reforming the lamentable religious state of his ummah and breathing into it again the spirit of faith and Islamic way of life 

"Within 20 lessons of this handbook, all those teachings of the Qur'an and the Traditions and the sum and substance of the Faith have been compressed [in such a way that] by knowing which and by acting upon which a common man (who may or may not know much about Islam) can not only become a good Muslim, but a perfect man of Faith and a "friend" of the Lord also. Besides, it can be freely presented to non-Muslims who may be interested in knowing about Islam and its precepts." 

This web site contains some of the chapters of this book in an abridged form. 

A more comprehensive and a more popular work translated in almost every language of the world, about 300 pages in length, is published as Introduction to Islam by Dr. Muhammad Hamidullah. The eminent author, however, has also produced a short pamphlet under the title of "Islam in a Nutshell". This Web site contains an excerpt of the first few pages of the booklet. 

In "Introducing Islam", he says as follows: 

"A strange phenomenon has prompted me to write this booklet. An ever-increasing number of persons, all over the Christian West, is embracing Islam. The reason is unknown. Each individual has some incident in his life that makes him start meditating. Few are those who take time and make long studies to learn the details of the Islamic religion. Most are those who have absolutely no knowledge of it and present themselves in some mosque or other Islamic centre. All this is strange because Islam has no material attraction; more often than not, it has risks of material loss or other worries on the part of those who are around them and are hostile to the Muslim community. 

"Therefore a booklet seems to be needed to tell these seekers after truth what Islam would mean to them, and what burden it may entail, especially for performing the spiritual and religious obligations. It is better that they do not embrace Islam rather than abandoning it after having declared conversion and thereafter discovering unexpected duties." 

If Islam is such a simple and straightforward religion, why do we find so many schools of law --- e.g., Hanafi, Shafi'i, Maliki and Hambabi -- in addition to the Sunni and Shia sections? I have been asked this question both by non-Muslim and Muslim friends, and the frequency of this query seems to have been much more noticeable during the 40 years of my life in the West. It is with a view to answering this and similar questions that we decided to include in this Web site certain excerpts from Maulana Shibli Nomani's biography of Imam Abu Hanifah. The readers will find the answer to the above question in this article. Let me note here, for example, the following abridged passage. Shibli quotes Abu Hanifah: 

"Allow me to remind you that before the Apostle of Allah was assigned his mission, the people were polytheists. He preached to them that there is only one God and asked them to believe in his message Then duties were enjoined upon those who had embraced the faith" Up to the time of the Companions, the surface of Islamic beliefs remained smooth and undisturbed. The Arabs were not interested in philosophical hairsplitting and abstruse questions. But about the middle of the Umayyad period, the decline of military power and development of culture created an interest in intellectual speculation. Debates about jabr (compulsion) and qadr (predestination) and similar topics started 

"Differences of opinion had, it is true, cropped up as early as the time of the Companions. On the question of the Prophet's Ascension, for example, while Abd-Allah b. Abbas and many other Companions believed that the Prophet had actually seen God, Hadrat 'A'isha vehemently opposed this - just as Amir Mu'awiyah denied the Prophet's bodily journey to Heaven. But such differences of opinion did not lead the holders of the opinions to denounce each other as infidels and heretics 

"After the Companions, such differences gained in intensity and gave rise to sharply divided factors. There are many questions of belief and law on which no decisive Qur'anic pronouncement is available, such pronouncements as exist being mutually contradictory, which necessitated deduction and reconciliation of contradictions. [It is of essential significance to note that such unavailability of decisive pronouncements is not to be taken as a 'slip' or 'shortcoming' of the Legislator for the reason that, in the Divine Scheme of legislation through 'revelation', these matters were deliberately and for a purpose left open to provide a desirable and needed latitude for future interpretation and adaptation to the evolving circumstances of the human race.] This occasioned the exercise of individual judgement, which in turn gave rise to a variety of opinions. Undoubtedly some of these opinions were wrong, but it did not follow from this that they were heresies [However,] this intolerant sectarianism [which developed further] rent asunder the fabric of Muslim society In the midst of this all-pervading destruction there was only one constructive voice, that of Abu Hanifah, declaring aloud: 'Of the people of the qibla there is none whom we consider an infidel.' 

Now, as to the difference of schools which developed as a result of the differences of opinion, there are three main groups: Sunnis (followed by more or less 80% of the Muslims), Shi'as and Abadites (nicknamed Kharijites) with several subdivisions. They have a few differences in matters both of dogmas and cult. The differences in dogmas come from the deduction of the leading theologians of each school, but in the matter of cult nothing has been invented by anybody, but all comes from the Prophet himself or is deduced from the report of his saying or doing. It is evident, therefore, that practically all the differences emanate from the divergent practices of the holy Prophet himself, and nobody has the right to despise any of them. As Dr. Hamidullah puts it clearly: "If a Shafi'ite, for instance, refuses to celebrate the service of worship, [i.e., salat] under a Hanafite imam, that means that this Shafi'ite refuses to follow the Prophet himself when this latter practised in a manner not known in the Shafi'ite school. What an enormity!" 

It is in this true spirit of Islamic tolerance that we must desist from adhering to any abhorrent belief that followers of one's own school of thought/law are muwahhids and that followers of other schools are to be, ipso facto, branded innovator (bid'ati), polytheist (mushrik) or infidel (kafir)! May Allah protect us from such a shockingly wicked crime. 

As to the two great sects, the Sunnite and the Shi'ites, "The difference between them is based on a political question: Whether the succession to the Prophet should take place by election or by inheritance among the close relatives of the Prophet? This became a question of dogma to the Shi'ites, and the schism split into ramifications of its own and occasioned civil wars. In our days there are probably no more than ten per cent Shi'ites among the Muslims, the rest being almost all Sunnites, not to speak of the infinitesimally small sect of the Kharijites." 

Another question which is just as often put to me goes like this: "You say that human nature is pre-disposed to 'good'/ virtue and its climax is surrender to Allah, i.e., Islam being the point of its culmination. How is it, then, that a large segment of humanity has always been swept away by the tide of infidelity?" 

The simple answer to this may be given in some such words: It is true that man is created with a pre-disposition to good, but at the same time he is also provided with a tendency to pursue evil, if he so chooses, by following the dictates of his ego (nafs in religious terminology). Man is thus charged by a responsibility to choose what is useful, moral and 'good' for him and his community and forsake what is harmful, immoral and 'evil'. 

This sense of responsibility (to obey the law which stipulates what is good and moral and what is immoral and evil) is what distinguishes man from animals and beasts. 

This inborn ability is what we call 'religiosity'. This ingrained nature of religiosity creates in man a strong natural urge and desire to do 'good' deeds in order to satisfy his religio-spiritual appetite for the 'soul food' in the same manner as he feels the need to eat to satisfy his physical hunger. Now, just as poisonous or harmful food can prove fatal or make a man ill, so can immoral, 'evil' things cause man's spiritual death or illness. Some organic foods containing excessive and disproportionate amounts of fats, sugars or cholesterol, for instance, may be the source-cause of his physical diseases and may be cured by proper medical treatment. Similar is the case of spiritual diseases which may be diagnosed by their symptoms of 1) psychic perversion or impediment of ego, (2) cultural perversion or impediment of the environment or social customs, and 3) intellectual perversion or the impediment of false knowledge (i.e., not beneficial for religio-spiritual purposes). Muslim jurisprudence (fiqh) is a detailed codification of law based on, dependent upon and derived from the four sources of Islamic law: 1) the Holy Qur'an, 2) the Prophet's Traditions, 3) consensus (ijma') and 4) analogical deduction (qiyas). 

Traditionally, fiqh is divided into three parts (in order to facilitate and accommodate the ever-growing corpus of the new interpretations of law by way of ijtihad, for the purpose of keeping up with and adapting to the changing needs of the society: 

1) Fiqh Akbar (the senior fiqh or the first fiqh) deals with the subject of Beliefs, articles of Belief and related matters. Scholastic Philosophy (kalam) is a science which deals with discussions and debates on related philosophical speculative issues. Its importance lies in the fact that without correct beliefs, man's 'external'/physical deeds, work or acts (A'mal) carry no reward and acceptance in the sight of God. 

2) Fiqh Ausath (the central fiqh) deals with such matters as sincerity of heart in motives and intentions. It also deals with 'inner' (or spiritual) acts or works such as diagnosis and treatment of spiritual diseases referred to above, embellishment (of acts) referred to as ihsan in the celebrated report called the Hadith of Archangel Gabriel, ascetic practices, ever-increasing realization of the presence of God through zikr/remembrance of God, and developing and nurturing the spiritual and moral culture of Islam. In latter years, both these parts of the law became 'specialities' - the first came to be known as kalam, as I have just mentioned, and the second (i.e., the fiqh ausath) came to be described as a speciality, tasawwuf, and the adepts were given the derived name of Sufis. In our times it has acquired a curious name of 'Sufism' or Islamic mysticism. Since all acts, be they of 'outer'/external/physical nature or 'inner'/spiritual nature, are judged by and depend upon the correctness and sincerity of the intention/motive/purpose of the acts, both the first fiqh (i.e., the fiqh akbar) and the third fiqh (i.e., fiqh asghar or lesser fiqh), despite their own importance in their own right and in their own sphere, are in reality dependent upon the degree and quality of adherence and compliance with the fiqh ausath (i.e., tasawwuf/Sufism). The beliefs, for their rectitude or correctness, and the acts of devotion and personal conduct, for their amelioration and beatification or embellishment, thus depend on fiqh ausath (tasawwuf). 

3) The third part of fiqh is called fiqh asghar (lesser or junior fiqh). It deals with matters relating to 'outer'/external acts of devotion such as ablution, salat, fasting, zakat, hajj and the detailed rules and regulations of practical nature. 

We pray to Allah for acceptance of the modest and humble efforts ours.

Syed Mumtaz Ali
Barrister and Solicitor (retired)
President, The Canadian Society of Muslims

For information on Syed Mumtaz Ali and some of his accomplishments click here.