It all began in 2003 in the most unlikeliest of places: Ontario. When a Muslim group sought to offer Islamic arbitration and mediation services to the community, nobody imagined that it would trigger a wave of anti-Muslim hysteria. After initially defending the right of Muslims to do what others had been doing unhindered, the Ontario government caved to opponents and ordered a review. Despite the review's qualified support of religious arbitration, the ensuing "moral panic" garnered worldwide attention, and forced the sitting Liberal government to ban religiously based family law arbitration in the province in 2006. In a first on a controversial issue, both opposition parties concurred due to the public outcry over the potential abuses that may arise.
At the beginning of 2014, about a dozen states introduced or re-introduced bills to ban the use of "Sharī'ah" law. They hope to join the eight states that have ostensibly banned it to date.
In August 2012, just one month after the State of Kansas passed Senate Bill 79 banning the use of foreign law, a state court found its hands tied when Elham Soleimani sought the enforcement of the mahr (payment from groom to bride, a portion of which may be contingent on divorce) provision in her Islamic marriage contract. Elham's claim failed, thanks to the law which State Senator Susan Wagle introduced as "a vote to protect women." Elham would beg to disagree.
Essentially the court took the position that enforcing the Islamic contract would violate the foreign-law ban and the "separation of Church and State [doctrine] under the Establishment Clause of the First Amendment" of the U.S. Constitution.
These debates exemplify the contemporary concerns regarding religiosity in the public sphere and the place of Islam in Western nation states. Sadly, the mobs influenced by Islamophobia and hysteria appear to be directing the state response in too many jurisdictions.
Anti-Sharī'ah advocates have cited a number of cases to back their tenuous claim that Sharī'ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy, on a case-by-case basis in virtually all North American jurisdictions.
The movement to ban foreign and/or religious law, according to the New York Times, is the brainchild of an Islamophobic lawyer, David Yerushalmi, who has been described by the Anti-Defamation League as having a record of "anti-Muslim, anti-immigrant and anti-black bigotry." As the Times documents, after the Oklahoma "Save our State" measure was struck down as unconstitutional for singling out Islam, Yerushalmi turned his mind to draft a model statute known as "American Laws for American Courts" for the American Public Policy Alliance. With the help of its Islamophobic allies, the Alliance has managed to have more than 71 pieces of legislation adopt the language to date. The model law is silent on Islam, but as pointed out by Daniel Mach and Jamil Dakwar of the ACLU, their intent "is unmistakable." They wrote:
"... these efforts are rooted in the baseless idea that U.S. Muslims wish to impose Islamic law on Americans. Proponents of these misguided measures ... clearly seek to ride the recent wave of anti-Muslim bias in this country."
There is no creeping Sharī'ah overtaking Western legal systems (certainly not North American), but plenty of plain bigotry in the form of Islamophobia. The evidence suggests that courts treat claims by Muslims using religious law the same way they deal with claims brought by those of other faiths and those of no faith--sometimes they are accepted and sometimes they are rejected.
The nuanced, case-by-case approach that has evolved in Western courts, applying constitutional norms, the principles of comity, contract law, and public policy, provides sufficient checks to ensure that courts do not become impermissibly entangled with religion and do not allow for Islamic law, or any religious or foreign law for that matter, to become the law of the land.
We certainly don't need the mob to tell our courts how to uphold our constitutions. Perhaps our politicians need to be reminded that constitutions and independent judiciaries are our best defenses against the oppression of both minorities as well as the majority.
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Canada's announcement that it has severed diplomatic relations with Iran was surprising, even unprecedented, experts in international relations say. Foreign Minister John Baird was in Russia when he announced the government was kicking Iran's diplomats out of Canada and recalling the handful of Canadian diplomats in Tehran. "I was very surprised by the Canadian announcement," James Devine, an Iran expert at Mount Allison University in Sackville, N.B., told CBC News, noting that it isn't tied to a specific event or a reaction to "an acute crisis in the relationship." "Oh my god, I can't tell you how upset and scared I am right now," Niaz Salimi, the president of the Iranian-Canadian Community Council, said in an interview with Embassy magazine. Baird's statement lists a series of old grievances but does not say what specifically prompted the surprise move. He did say "the Iranian regime has shown blatant disregard for the Vienna Convention and its guarantee of protection for diplomatic personnel," likely a reference to the ransacking of the British Embassy in Tehran by protesters in 2011 while Iranian police looked on. He also alluded to the safety of Canadian diplomats -- something Canada's last ambassador to Iran, John Mundy, told the CBC's Nancy Wilson has been a long-standing concern, though he noted the government has not provided any information about specific threats. Mundy, who was expelled from Iran in 2007, has since retired from the diplomatic corps. He called Canada's action "a very drastic step" and one that surprised him, too. In an interview on CBC Radio's The House, Baird emphasized his "concern was for the safety of the men and women working at the Canadian mission," but when asked by host Evan Solomon whether there was "something specific" he conceded there was "not a direct threat" or an increased security risk. "The mission in Tehran is not one of the safest we have," Baird also told Solomon. "It faces a busy road and it could be overrun pretty quickly." Janice Stein, arguably Canada's leading Middle East expert and the director of the Munk School of Global Affairs at the University of Toronto, told CBC News she sees the move as an "issue of security for diplomatic personnel in Tehran as the sanctions ramp up, and Canada's remaining diplomatic personnel would be a prime target were crowds to turn hostile." Here are some other possible motivations for the severing of ties. With files from CBC
Canada's move is making international headlines and its significance shouldn't be underestimated. Even after its embassy in Tehran was ransacked -- an attack its ambassador, Dominick Chilcott, described as "a state-supported activity -- it did not suspend diplomatic relations, although it did expel Iran's diplomats. At the time, British Deputy Prime Minister Nick Clegg told the BBC the U.K.'s response "doesn't mean we're cutting off all diplomatic relations with Iran; it doesn't mean we are in any way lessening our determination to try to find a diplomatic solution to the nuclear question." So why did Canada suspend relations now? Devine points to the Non-Aligned Movement (NAM) summit in Tehran last week. Iranian officials boasted about a successful summit, which involved most countries from Africa, Asia and Latin America. He says the summit "was not an overwhelming success for Iran but demonstrated they are not as isolated as the West would hope." The West is trying to isolate Iran over the dispute about Iran's nuclear program. In that context, Devine says, Canada may be trying to send "a symbolic message to Iran after the NAM meeting that they should not conclude that their isolation is over or that they can escape western pressure." He believes the suspension's timing could be related to Canada's Justice for Victims of Terrorism Act, which allows victims of terrorism to sue a country that Canada lists as a state sponsor of terrorism. On Friday, Baird said he was adding Iran to that list, along with Syria. The act, passed in March, gave the federal cabinet until mid-September to list states sponsoring terrorism.
"The timing and the way they did it is rather awkward because they chose to announce it on the doorstep of Russia, which is the country that is the strongest proponent of the negotiated settlement to the nuclear issue," Mundy said, calling Canada's announcement "an implicit criticism of Russian policy toward Iran." However, the timing may also be connected with when the last Canadian diplomats left Iran, which was ahead of the announcement. That Baird made the announcement in Russia also raises the question of whether there was some urgency for Canada's actions. Ray Boisvert, the assistant director of Canadian Security Intelligence Service until April 2012, told Solomon that Canada's move was unprecedented, since that is something that only "usually happens in very severe conditions." He also noted that Canada does not normally take the lead in this kind of foreign policy action. Boisvert also pointed to what he said was the Iranian Embassy "running some kind of threatening operation" aimed at the Iranian community in Canada. According to Boisvert, Iran "absolutely" poses a security threat in Canada. Kaveh Shahrooz, vice president of the Iranian-Canada Congress, told Wilson that "members of the community are worried if they partake or speak out, that will be reported to [the Iranian Embassy in] Ottawa and there'll be repercussions for that person if they go back home, or for their family." "We've been concerned for some time about the actions taken by the mission in Ottawa," Baird told Solomon.
Mundy, Salimi and others point to a possible military strike against Iran's nuclear facilities as a motive behind Canada's announcement. "For us, it's an immediate sign of attack on Iran," Salimi told Embassy magazine. However, Baird said on The House that the government has "received no notice of any decision taken by the United States or Israel in this regard, so I can categorically say that the timing of the decision had nothing to with an imminent strike. " For his part, Devine said an imminent strike is not on tap. "The signs don't suggest there's an imminent attack coming from the Israelis or the Americans right now. And the Americans, especially, are not going to want to get into anything until the elections are over." Stein also told CBC News she does "not believe Canada's action was in response to any intelligence information about an imminent strike." The U.S. has been building up its forces in the region and putting pressure on Iran, Devine points out, "They want to make sure the Iranians feel there is a possibility of attack, because if the Iranians were ever to decide there is no chance the Americans are going to attack, their [American] leverage would be significantly reduced. Building up forces is consistent not just with an attack but consistent with the idea there are trying to use pressure." Stein agrees: "The U.S. is at pains to say there is no specific intelligence yet that suggests the Iranians have made the decision to weaponize their nuclear program and, given that, I would be very, very surprised if President [Barack] Obama would resort to force before the election."
The Canadian government's move is likely to have little impact in Iran. "The Iranians are not looking at Canada as that important an actor in all of this," Devine said, adding Canada's economic relations with the Islamist nation have gradually weakened. Stein holds a similar view, noting that "the Iranian government certainly knows where we stand, we've made our position forcefully." Ken Taylor, who was Canada's ambassador in Iran during the U.S. hostage crisis that began in 1979, told CBC's Hannah Thibedeau he doesn't agree with Canada's decision to suspend diplomatic relations. "Given Canada's status as an international player, there's great value to having someone there on the ground who can interpret what is going on, to the extent that there are challenges to doing that properly," he said. Mundy said that now, "We no longer have the ability to communicate directly, government to government, with the Iranian government." Stein says, "The major impact will be on the Iranian diaspora in Canada, which will have a lot more difficulty getting visas to go home for visits."
Another significant impact to Mundy is that "we no longer have Canadian diplomats on the ground to protect the interests of Canadian citizens" in Iran. "There are a lot of Canadian citizens in Iran, some of whom are in jail, and some of whom depend upon the Canadian diplomats to make representations on their behalf." Hamid Ghassemi-Shall, a Canadian citizen jailed in Iraq since 2008, is one of three Canadians being held in Iran's notorious Evin prison, the same prison where Canadian photojournalist Zahra Kazemi was killed in 2003, which led to a serious worsening of relations between the two countries. Iran sentenced Ghassemi-Shall to death in 2009. His wife, Antonella Mega, told Thibedeau on Power and Politics that she feels the Canadian announcement is "a great disappointment for me and Hamid." The diplomats who have now left Iran "have expressed great concern for Hamid's case" and "have been continuously advocating for him." Feeling that "a door is now closed," Mega said she wants to hear from the Canadian government, "What is the plan that Canada has to help Hamid?"
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