Shari'a - Islamic Law
Sharia in Canada? Just Ask Mumtaz Ali
April 28, 2004
I am not a fan of the current Pope or any pope for that matter. So if all that Mumtaz Ali did was insult the Pope � and he did grievously insult the Pope � I would consider it nothing more than an example of deplorable manners. Besides, the Pope doesn�t need me to defend him.
Ali, in case you�re wondering, wrote this: �Ayatollah Khomeini had condemned Salman Rushdie because his book was considered blasphemous; the Pope condemned Madonna for her provocative songs. As head of his respective religious structure, each did what was expected of him by his followers. Any Muslim cleric would have reacted to this book in the same manner as the Ayatollah; any Catholic priest would have found Madonna�s songs distasteful.� (Ali, Apostasy)
True, the Pope probably doesn�t like Madonna�s work very much, but to suggest, even slyly, and this is not that slyly, that the Pope is essentially the same as Khomeini � a man who publicly counseled murder � is an insult of the highest order.
Still, if that was all that Ali did, I would pass without comment. But I can�t. Mumtaz Ali is not just a retired Canadian lawyer with a penchant for outrageous insults. He is, rather, a driving force behind an initiative that could potentially deprive tens of thousands of Canadians of their most basic rights.
Mumtaz Ali, you see, is a Muslim who wants to establish a beachhead for Sharia � Islamic law � in Canada, Sharia condoned and enforced by the Canadian legal system itself.
Mumtaz Ali, said to be the first Canadian lawyer to swear his oath of practice on the Quran rather than the Bible (Rhijn, 2003) an oath that one might reasonably expect entails a belief in and adherence to the Canadian legal system, apparently has little or no use or respect for the very system that has provided him a long and presumably lucrative livelihood. I base this on Ali�s own words, published on-line in Apostasy and Blasphemy in Islam.
In �Chapter 8 � Some Pertinent Issues� Ali presents a shorthand version of his beliefs. He prefaces a list of these ideas with the comment that, �The following additional differences and distinctions between the Islamic and western ideologies, philosophies of life and legal systems (including systems of punishment) deserve particular attention.�
Paying attention to what he says is indeed illuminating with respect to the very legal system he has been an active part and beneficiary of for his working life. Below are some of Ali�s comments (capitals and italics are Ali�s):
Islam does not believe in the principle of separation of the spiritual and the temporal, the sacred and the profane nor the church and the state.
The Islamic concept of PERSONAL FREEDOM is the complete opposite of western thought. According to Islam, personal freedom is available and permissible only in respect to matters which are NOT REGULATED by the injunctions and prohibitions laid down by the Qur�an and the Sunnah, for these are expressions of the inherent Divine Wisdom manifested through Divine Will.
Islam repudiates entirely the latest version of the philosophy of western democracy in which the west accepts the absolute sovereignty of the people, the absolute powers of legislation rest in the hands of the people, lawmaking is their prerogative and legislation must correspond to the mood and temper of their opinion.
Since he professes himself to be a good Muslim, I am left to question his sincerity in his service to the Canadian legal system, a system that is predicated on the separation of church and state, that is predicated on the will of the people.
�Islam repudiates,� Ali says, and Ali is a faithful adherent to Islam. Still, one might ferret out an idea of how to resolve, to some degree, this seeming contradiction of swearing allegiance to a system that his religion repudiates. There is apparently an Islamic version of render unto Caesar what is Caesar�s, to God what is God�s. Muslims living in non-Muslim states are enjoined to abide by, as far as is possible for good Muslims, the laws of those states.
In a 1995 interview, Ali was asked where he stood on polygamy, a common practice in Muslim states, but a hot-button issue in much of the West. Ali remarked: �I stand on the Shariah which states that a Muslim living in a non-Muslim country must obey Muslim Law to every extent possible, and that we must adhere to the laws of the host country. Therefore, we accede to the Canadian law on this point without accepting its superiority or supremacy over Muslim law.� (Mills, 1995)
Given that response, I don�t actually doubt that Ali worked quite appropriately within the Canadian legal system. His own words, however, make it clear that Ali is in no way a fan of Canada�s legal system. Indeed he is a prime mover behind the recent push to sidestep Canadian practice by giving Sharia a measure of official status in Canadian law.
In that same interview, Ali says the following: �Do you want to govern yourself by the personal law of your own religion, or do you prefer governance by secular Canadian family law? If you choose the latter, then you cannot claim that you believe in Islam as a religion and a complete code of actualized life by a Prophet who you believe to be a mercy to all.� (Mills, 1995)
If Ali was adhering to Canadian law while also recognizing Islamic law as superior, and the one to which every good Muslim must attempt to adhere to, he must have been tap dancing pretty much constantly. In drawing up something as simple as a will, for example, would he have counseled his clients to draft a will in ways that would reflect Canadian norms or Islamic law? Islam assumes that a man is the provider for a woman, so that a son inherits, as a matter of course, proportionally more than a daughter.
Really, there is little conflict in this simple example. In Canada people are fully entitled to dispense with their property as they see fit so long as no Canadian law is broken in the process. Disputes over wills, however, are legion, and often the legal system is left to sort out the issues � to sort them out according to Canadian legal norms.
This arrangement, however, is no longer good enough for Ali and others in the Canadian Muslim community. They want personal family law (PFL) to reflect specifically Islamic dictates for Canadian Muslims, and they want Canadian law, initially Ontario�s Arbitration legislation, to sanction this. It is not enough for them to allow individuals freedom of choice. Even mediation, in which parties gather voluntarily to solve disputes in the presence of disinterested parties, is given no value. For Ali, if mediation cannot force Canadian Muslims to settle according to Islamic law, then mediation is of little consequence.
About mediation, Ali says, �From the point of view of the Canadian society of Muslims and our campaign goals, mediation is a toothless form of conflict resolution because it still does not address our needs for legislation to enact Muslim PFL within the Canadian domain. (Mills, 1995)
Yet Ali still is trying to tread carefully. Polygamy is a hot-button issue, and he has already side-stepped that by saying he an other Muslims will have to �accede to Canadian law� on that. He suggests the same for child custody disputes. Ali is quoted as saying, with respect to child custody, �We cannot use that aspect because Canadian law is very sensitive to the interests of the child and courts must decide custody.� (Jiminez, 2003)
The implication is that Sharia treatment of children is less �sensitive to the interests of the child� that Canadian legal norms. However, I doubt Ali really believes that, especially when recalling that any Muslim who chooses to govern himself by �secular Canadian family law� is someone, according to Ali, �cannot claim � [to] � believe in Islam as a religion and a complete code of actualized life by a Prophet who you believe to be a mercy to all.�
Rather, it seems that Ali is going for what he can get. Care for children is incorporated into Sharia, and Ali�s purpose is to extend Sharia into Canadian life as far as possible. If that means � for now � ceding child custody to the system he repudiates, fine. He has enough to do breaking down other repudiated legal processes, processes like mediation.
Ali clearly doesn�t like mediation. He does, however, like binding arbitration. In fact, binding arbitration is what Ali is after. He wants personal family law for Canadian Muslims to be subject to binding arbitration based specifically on Sharia principles. And he wants Canadian law to enforce his plan.
Given his apparent willingness to restrict his initiative so that sensitivities such as those over polygamy or child custody are not abused (mostly, in my opinion, so that opposition won�t be roused) you might think that is as far as Ali wants to go. Think again.
Ali�s words over the years make it clear that a beachhead for Sharia in civil law is only the beginning. He sees the international Muslim community as a distinct society, and in Canadian political history, in the struggle with Quebec, he sees an opportunity to make his beliefs real.
For starters, he suggests Canada needs to be �cured.� In his defense of Sharia sanctions against blasphemy and apostasy � both punishable by death � Ali discusses what he sees as differences between Islamic and western views of the concept of the nation state. Ali says the following:
Islamic concepts of �State, nation/nationality,� �citizenship� and �naturalization� are drastically different from these notions as we understand and routinely use them in Western secular countries where they are defined as follows: a nation� is defined as �a body of people recognized as an entity by virtue of their historical, linguistic or ethnic links; a body of people united under a particular political organization, and usually occupying a defined territory.� And a �state� is defined as, �a self-governing political community occupying its own territory; a partly autonomous member of a political federation; the political organism as an abstract concept.� Islam came to class these notions among the evil traits of humanity and tried to bring about a cure. (Ali, Apostasy)
For Ali, the Islamic cure is religion, specifically Islam, and this is achieved by claiming that Islam is a nationality: �What is the Islamic cure? Or to put it another way: How different then is the Islamic concept? To start with, the basis of the Islamic nationality is religious (sic) not political, ethnic, linguistic or regional.� (Ali, Apostasy)
To some extent I share a sympathy here. Identity politics � the politics of race, colour, nationality � seem historically to be corrosive by their nature. But so, perhaps even more so, is religion. Catholic versus Protestant, Christian versus Muslim, Hindu versus Sikh, none of these has resulted in lasting peace. The idea the Islam will �cure� the problem � presumably by making everyone Muslim � is more than a little disingenuous.
There would be far fewer conflicts around the world if everyone was Jewish, too. Or Hindi. Or Buddhist. Or Catholic. But that is missing the point. Ali doesn�t want to be in a Buddhist state, he wants all Muslims to be in a Muslim state, one not bounded geographically, and he will start the creation of that international state by demanding the acceptance of Sharia in Canadian law.
Ali and friends may be willing to start with personal family law, but it won�t end there. In fact, Ali makes his case that Islamic punishment for blasphemy and apostasy � death � is not only reasonable in Islamic countries, but in Canada, too. He makes the argument that the Canadian Charter of Rights and Freedoms would accept this (the italicized phrases are Ali�s):
It is our position � that the limits prescribed by Islamic law, with regards to blasphemy/apostasy, do satisfy both the Charter requirements: namely (i) the Islamic limits are reasonable limits, and are (ii) demonstrably justified within the meaning of Section 1 of the Charter on these grounds: a) The provision of the Preamble regarding the supremacy of God, b) the constitutional obligation to interpreted (sic) in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians, c) that over one billion people worldwide consider these limits to the freedom of speech/expression to be reasonable, d) (i) what such a large segment of the Canadian minority believes as a precept of their faith/religion ought to be fully recognized if the Charter�s provision respecting freedom of religion are to have any real meaning. (ii) Adherence to Islamic principles in this context, ought to be accepted as sufficient enough to satisfy the Charter Requirement of demonstrable justification. Recognition of Islamic standards of reasonable limits on the freedom of speech does not necessarily entail any obligation to enforce the Islamic punishment for blasphemy/apostasy within the Canadian jurisdiction. (Ali, Apostasy)
The punishment Ali is arguing for is death. He is using the Canadian Charter of Rights and Freedoms to suggest that Muslims in Canada should be subject to death for either apostasy or blasphemy, although he is so open-minded as to suggest that Canadian Muslims would not be obligated to kill one of their own.
This is the same man who is arguing for the acceptance of Sharia � in binding arbitration � in Canadian personal family law, even if, for the moment, he can live with restricting the initiative so that polygamy and child custody might not be involved.
For some, I suppose, bending Ontario arbitration legislation to the point of enforcing Islamic PFL may be a modest, even innocuous move. For Ali, who clearly envisions an amorphous, international Islamic state divorced from any western legal norms, this would be a huge first step.
By J. D. Sturtridge
List of Sources
Ali, Mumtaz. Apostasy and Blasphemy in Islam. Downloaded 23 March 2004 from the
Canadian Society of Muslims web site: http://muslim-canada.org/apostasy.htm
Interview: A review of the Muslim Personal/Family Law Campaign. (1995).
Coordinated by Rabia Mills. Downloaded 21 March 2004 from the Canadian
Society of Muslims web site: http://muslim-canada.org/pfl.htm
Van Rhijn, Judy. First Steps Taken Towards Sharia Law in Canada. (25 November
2003). Originally published in the Law Times. Downloaded on 10 March from
from the Vancouver Indymedia web site:
http://vancouver.indymedia.org/news/2003/11/87502.php
