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Mixing sharia law with Canadian legal traditions.

Politics, like religion, hold up the torches of martyrdom to the reformers of error.

--Thomas Jefferson (1743-1826)

It is readily acknowledged that in order for society to function properly and hence predictably, order must be maintained. The rule of law is instrumental in performing a number of these order maintenance functions, such as dispute regulation and resolution, the administration and coordination of activities, and the promotion of moral principles. These functions are most often based upon the collective norms and values of society.

Consistent with the classical perspective, most societies attempt to resolve disputes in a manner that is fair and just for all. In a country such as Canada, which has become increasingly culturally, racially, and ethnically diverse, determining what constitutes justice and fairness for all has become more difficult to define. A recent document by International Affairs notes that Canada's diversity distinguishes itself from that of most other countries--reflected in the make up of the some 200,000 new immigrants who choose Canada as their new home each year. One group of these new Canadians are Muslims, who have recently garnered national attention in their proposal to incorporate sharia law into Canadian legal traditions. This proposal, introduced by a Muslim community in Ontario, sparked considerable debate and raised a number of legal and socio-political questions. (In April of 2005, Muslim leaders in Western Australia also called for sharia law to assist Muslims in setting disputes in divorce proceedings.)

This article first provides a brief overview of Muslims in Canada before offering a synopsis of sharia law, which is both diverse and complex, as there are five major schools of sharia. Trying to remain cognizant of the complexity of the Islamic faith, we will discuss some of the implications of applying sharia within the Canadian legal context.

Profile of Muslims in Canada

According to census data, in 2001 there were 579,600 self-identified Muslims in Canada, representing 2% of the nation's population. By 2005, this number had swelled to over 750,000, with 61% of the Muslim population concentrated in Ontario (estimated population 145,600), the largest provincial population in Canada (Profile of Muslims, http://soundvision.com/info/muslims/muslimsincanada.asp retrieved April 20, 2005.). In fact, of any city in North America, Toronto has the highest number of Muslims per capita. Muslims represent the youngest generation in Canada with a median age of 28.1 years, and Islam is the fastest growing religion in Canada. In addition, since the September 11,2001 terrorist attack, there has been a marked increase in the number of Muslims who have chosen Canada over the United States as the country in which they would like to live, study and/or work.

Given our country's express stance on respecting cultural diversity and the dramatic increase in the number of Muslims entering Canada, it is no surprise that questions concerning the intersection of Islamic law and Canadian legal traditions have emerged. The most recent example of this intersection involves the proposed formal inclusion of sharia law as an alternative dispute resolution mechanism in Ontario.

Principles of Sharia Law

Although many might have heard of sharia, its history and legal principles are less commonly known. Therefore, what follows is a brief summary of some of the key elements of sharia's history and application.

Rooted in the principles of the Koran, Islamic law traces its roots to the life and teachings of Mohammed the Prophet during the period around 600 AD (Although the sharia is based on the Koran, only about 500 of the 6,236 Koranic verses have instructions that could be taken as moral or legal instructions). Sharia or 'pathways' (the literal translation) represents one of the dominant schools of Islamic law and is viewed as God's divine law and core of the Islamic faith. Sharia is similar to Western justice in its recognition of the presumption of innocence and the requirement of proof beyond a reasonable doubt. However, it differs from Western justice in a number of ways. For example, sharia proceedings are more akin to conferences where participants sit at arms length from the judge as opposed to engaging in a formal trial process.

Sharia's informality (by Western standards) is founded upon the notion that participants are doing God's work to reach the truth. Because the law is motivated and directed by religion, many offenders freely confess to their crimes and accept their punishment as a form of reconciliation with God and society. While the use of sharia is slowly being co-opted into a more Western-based approach, current sharia practices still discourage defendants' use of lawyers because some judges prefer to deal directly with the accused.

Although media representations of Islamic law tend to present images of what would be described by Western standards as lurid punishments (e.g., amputations, beheading, stoning, caning, etc.), most punitive measures, which are decided by a panel of three judges, are actually quite mild. In fact, most scholarly pieces regarding sharia describe this system of justice as one of mercy and tolerance, although concerns about the discriminatory treatment of women persist. A report prepared by the Canadian Council of Muslim Women based on a survey of women of different faiths found that Muslim women are "the most discriminated [against] of the faith communities ... about one in three ... reported having experienced one or more experiences of discrimination or unfair treatment" (Profile of Muslims ..., 2005). And while there have been some efforts to liberalize sharia in terms of how it affects women, its modification is limited to the dictates of the Koran.

While the Koran is the starting point for the Islamic law, there are numerous schools of law of which the sharia is one of the dominant ones. Because Islamic law is founded on religious doctrine, there are no appeal courts and legal interpretation is often done by a prayer leader (known as the imam or the muezzin). Furthermore, unlike most Western laws, the application of sharia is only done when all parties consent, and it is private and not formalized. For example, marriage proceedings under sharia law requires the consent of both parties to wed, yet the husband has the absolute and unilateral right to divorce his wife without cause by simply uttering the phrase "I divorce you" three times, in public, over the course of three months. A woman by contrast can only seek divorce if her husband is infertile, insane, or has some contagious skin disease. In addition, women must appeal to the court and provide absolute proof. These same principals of consent, privacy, and informality also apply to other legal matters (such as custody, property and inheritance disputes, among others). These three civil issues formed the focus of the recent Ontario discussion.

Mixed Legal Traditions: The Ontario Debate

Mixed or hybrid legal systems that include both common law and Muslim law can be found in a number of Muslim-dominant countries such as Oman, Qatar, Singapore, and the United Arab Emirates (based on information from the University of Ottawa Law Faculty). Collectively, these countries represent only about 5.3% of the world's population. An example of these mixed legal traditions is the treatment of women in Oman. While women now have the right to drive, vote, and pursue many career opportunities, Muslim law dictates that women are required to follow traditional Muslim practices, such as remaining completely covered with the black abaya. Given the conflicting ideological approaches to law, the inclusion of Muslim legal traditions within a dominant common law system has, to date, not been a conventional practice.

The Ontario debate about the proposed inclusion of sharia in Ontario's 1991 Arbitration Act has raised issues--primarily concerning women's rights--in terms of the formal blending of religious and secular legal practices in Canada (based on the December 20, 2004 report by former Ontario Attorney General Marion Boyd). Arbitration issues under sharia have historically been resolved privately and voluntarily in an informal manner based on principles of faith--a practice that has been occurring in Muslim communities in Canada for years. However, with the recent proposal put forth by the Muslim community in Toronto to create a formal tribunal to arbitrate and resolve legal issues between Muslims, conflicts between religious and formal legal principles have arisen. Where formal Canadian legal principles express respect for multiculturalism and equality for all, opponents of the blending of Canadian legal practices with sharia argue that Muslim women's equality rights will suffer with the incorporation of sharia into Canadian law. For example, critics have argued that although participation under the Arbitration Act is voluntary, Muslim women will be at a greater risk of being pressured and coerced into consenting to such proceedings. Such social pressures could subsequently result in the (further) oppression of Muslim women who may have been coerced into using religious doctrines to resolve domestic conflicts. The Women's Legal Education and Action Fund (LEAF) argues that it is neither legally nor morally just to blend provincial and/or federal law with religious law in family law matters. While LEAF agrees that religious principles can form part of the arbitration process, those religious principles should not conflict with existing formal legal traditions. Recently, similar views were also vehemently expressed by various political officials in Quebec (De Souza, M. (March 11, 2005). "Keep Islamic law out of Canada, Quebec politicians urge." http://www.canada.com).

Slippery Slope

The Koran is over 1,300 years old, and although interpretations of it have evolved, they still remain faithful to the sayings and deeds of the prophet Mohammed. Therefore, perhaps due to its lengthy existence, its followers consider this faith-based law superior to man-made laws. Islamic scholars readily point out that their legal tradition has been effective in practice: it has served to maintain a sense of social harmony and crime rates are notably lower in regions operating in accordance with Islamic law. Yet, organizations such as Amnesty International and the Human Rights Watch have yielded less than glowing reports concerning human rights violations in many predominately Muslim countries, particularly violations concerning the rights of women. For example, some sharia interpretations find raped women guilty of "tempting" men, and have resulted in the stoning of women for "offences" such as flirting. Muslim men, on the other hand, are afforded "rights" such as beating their "disobedient" wives, and subsequent to divorce, have the "right" to custody of children and the bulk of marital assets.

Utilitarian principles require that all people regardless of race, gender or creed conform to the dominant norms and values of a country and equality principles dictate that each person be respected and treated equally before and under the law. These ideal principles become muddied when trying to reconcile them between two fundamentally and ideologically differing legal traditions. Furthermore, in a culture that has championed human rights, it becomes pragmatically incongruous to incorporate a religion-based legal tradition that since the fourteenth century has not recognized equality between the sexes (generally speaking, although some versions of sharia practice have done otherwise). Yet, as Canada becomes increasingly diversified in its ethnic and cultural make up, we need to find a way to ensure and maintain social order that can command the respect of all citizens. In so doing, the solution to the situation in Ontario might not rest in amending Ontario's Arbitration Act, but in domestic laws that are founded upon principles set forth by the United Nations and its various declarations of human rights (see LawNow special issue on the 60th Anniversary of the United Nations, Oct/Nov 2005).

Note

On Sept. 11/05 Premier Dalton McGuinty informed the media and public that Ontario will not support the use of Sharia law to settle Muslim family disputes and in fact will ban all religious arbitrations in the province. The decision was met with mixed opinion from opposition leaders

John Winterdyk, PhD is a professor with the Department of Justice Studies at Mount Royal College in Calgary, Alberta and an adjunct professor at St. Thomas University in Fredericton, New Brunswick. Kiara Okita is currently an MA student in the Department of Sociology at the University of Alberta in Edmonton, Alberta.
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Title Annotation:FEATURE on religion and the law
Author:Winterdyk, John; Okita, Kiara
Publication:LawNow
Geographic Code:1CANA
Date:Dec 1, 2005
Words:2015
Previous Article:Religion in public schools.
Next Article:Who cares about women coming out of prison? We do.
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