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Bismillah ur Rahman ur Raheem

 March 17/04

To Ahmed and Faisal Kutty.

From Canadian Council of Muslim Women.

As salaamu alaikum,

Thank you for writing to Alia Hogben regarding the issue of the proposed implementation of Shariah [Muslim Personal Law] in Canada. Please excuse the delay in  responding, but the board needed time to respond thoughtfully and clearly to you.

We have also read your article on the IVIEWS on the internet, which is similar to what you have written to Alia, so we will respond to both your messages. We respect Ahmed Kutty’s knowledge of Islam and Faisal Kutty’s  knowledge of the Canadian legal system.

You are learned and you know that fiqh is complex, controversial, interpreted and practised in a myriad of ways in different geographical areas.

1.CCMW is concerned about the anti-Islam/anti-Muslim sentiment and we do not want to add fuel to the fire. However, we cannot choose silence on an issue which we sincerely believe will affect us adversely, as practising Canadian Muslim women.

It is morally repugnant to question anyone’s religiousity, only God can judge, therefore no one should make others feel less Muslim for questioning the practices of fiqh.

2. We do not make any statements against Shariah. 

Shariah encompasses a way of life and is not limited to laws, which are correctly called fiqh. Although we understand that people are using the word “Shariah” as a shorthand term, we want to be careful that what is being discussed is fiqh, jurisprudence and personal Muslim law. We know that fiqh is based on divine text and was the interpretations of learned men over a century after the death of the Prophet Mohammed, peace be upon him, but it is not divine law.

The law should  more accurately be called Muslim and not Islamic law because it is interpreted and used by many Muslim communities and the interpretations have been various. When it is called Islamic law, it silences any discussion because anything labeled as Islamic sets up camps, leads to religious zeal and loss of objectivity.

3. Surely we agree that there are Five Beliefs and Five Pillars of Practice in Islam, which are essentials for a Muslim. There is no sixth pillar or belief which states that Muslims have to practice fiqh.

We understand that we Muslims are struggling to find ways to demarcate what it is to be Muslim and are seeking identifiers, but to add the requirement of living under Muslim law should not be one of them.

4. Your point that Shariah/fiqh could develop/evolve in North America is a valid one.

But what is being proposed here is immediate implementation by people who, however well meaning, have no in-depth knowledge or understanding, who may know about some schools of jurisprudence only but feel qualified to deal in legal matters and make “expert” judgements for binding arbitration.

To us this sounds no different than what is happening now, except that all the dealings instead of being informal mediation, will gain legitimacy and respectability under Canadian law. Added to this will be the persuasion from communities and families that using the Muslim law option is part of one’s faith. This is not voluntary.

You yourselves raise issues such as unfair decisions, women cave in to social pressure, issue of what interpretation will be applied, no formal certification process to qualify, abuse of women and minorities, rigid interpretations, and your conclusion that this is a “daunting task.”

5. The idealization of Shariah based on a patriarchal family model does not work for women. It is facile and unrealistic to state that today’s women can keep all their property [how many women have property?] that husbands are obliged to maintain them fully [how many women sit idly by?] and that men of the family are responsible for all their womenfolk [how many men can fulfill such a responsibility?] and is any of this fair?

It is said that marriage contracts stipulate conditions beneficial to women.  Who can give us real, not ideal examples - maintenance for three months? Child custody to the father and his family? A khul divorce if a woman wants to initiate it? A husband’s right to divorce his wife without legal recourse? A man can be polygamous? And a husband can hit his wife for nushuz, no matter how gently or kindly?

6.We wholeheartedly endorse that Muslim law can and should develop/evolve and that North American Muslims can play an active role in its evolution. But, the first step has to be the study, research, and development of an entire system of jurisprudence based on human rights, and after much open discussion/consultation/shura, Muslims may agree to a system of jurisprudence.

It is a major undertaking  for Muslims, requiring joint efforts and consensus prior to any application anywhere.

7. Canadian law under the Charter of Rights and Freedoms meets the principles of Islamic justice, equality and fairness. The development of a civil society with citizenship of all is a worthy modern development. Can anyone explain what is wrong with Canadian law which demands that we seek another system of law as Canadians?

We are not naïve and know that there are issues with Canadian law. However these can be challenged by the concerted effort of all Canadians, without reference to anyone’s religious beliefs.

If each religious or cultural group insisted in its own laws, the country would be fragmented and weakened, there would be differential treatment dependent of the laws and practices of each group. It does not matter that there are precedents just now, we would rather work towards a common law for all citizens.

We Muslims should remember the recent history of Canada, when the country was seen as based on Christianity, and Muslims could not get jobs because they were not Christians and did not attend church on Sundays. We have already heard that some churches are happy to have Muslims propose the use of Muslim law so that they can push for their own laws. Should we not defend laws which treat us and our fellow citizens in the same way? We are not blind to the racism and discrimination within the justice system but we would rather challenge these in concert with other Canadians.

8. There is a significant difference between mediation and binding arbitration and we do not agree with your statement  that this move from informal mediation to binding arbitration will “formalize and allow for greater transparency and accountability.”

Who will be held accountable and by whom? Generally no records are kept, only the award/decision is forwarded to the court. What monitoring  and evaluation is done in arbitration?

You know that if a party is unhappy with the binding arbitration agreement, she will have to go to court and what then is more cost effective or efficient?

We know that the court system is overloaded and that in some cases mediation and arbitration can be less adversarial and faster. However, we want to learn more about the accountabilities and overseeing mechanisms of the court system on these out of court legal processes. This exercise should not be only about saving tax dollars. It should be about justice and fair treatment of all.

Without offending anyone, we do question the motivation of some advocates, as these arbitration committees will certainly provide lots of work for Muslim lawyers, religious leaders, and others who become “trained.”

9. India is a classic example of the backlash created by the stubbornness, zeal and unthinking attitude of some Muslims who see any changes to Muslim law as an assault on Islam. The 1980s case of Shahbano, a divorced woman, illustrates how Muslims lost their values of social justice and compassion for  the literal application of Muslim law.

Here are some memorable quotes from Mumtaz Ali’s document: page 15.

“…then the court will hand them over to an arbitration board for a final decision, a binding ruling. That ruling would be final and would not be subject to the approval by secular court…”

“…a Muslim who would choose to opt out at this stage, for reasons of convenience would be guilty of a far greater crime than a mere breach of contract - and this could be tantamount to blasphemy-apostasy.”

“When people are marginalized by their faith in a country{Canada} which only pays lip service to the rhetoric of democracy and freedom…”

Quote from the Shahbano and the Muslim Women Act: A decade on.  p 99.

“Regardless of the rights and privileges that Islam may have conferred on Muslim women, they should not be denied the rights guaranteed by the Indian Constitution based on the recognition of equality, justice and fraternity of all citizens. It is imperative in a secular polity like ours to go beyond the rights conferred by various religions in order to evolve laws which would provide justice and succour to all women, irrespective of their religious beliefs.”

Thank you for writing to us, and though we will respect your request that we not circulate your email to others, your public comments on IVIEWS on the internet allows us to circulate our response to others.

Najet Hassan         Humera Ibrahim               Nuzhat Jafri
Razia Jaffer            Nina Karachi-Khaled         Solmaz Sahin
Iman Zebian        Alia Hogben, Executive Director.