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Society
Canada: Leaving Out the Shariah
by Naunidhi Kaur
November 6, 2005
The province
of Ontario decided recently that it would allow the use of Shariah
(Islamic law) to settle family disputes among Canadian Muslims. The
decision – which in September came after a year long raging controversy
– has done little to absolve the social conflict in the Canadian Muslim
community. It has also further widened the rift between those who
follow Shariah and those who oppose it.
The decision
has also left a majority of Canada's 7 lakh Muslim population
disgruntled and feeling that the country suffers from 'Islamophobia'.
Others say that by not making Shariah legal, Ontario has helped helpless
Muslim women from being abused by their partners in the name of
religion.
This issue has for long been a contentious one. It has its root in the
use
of the Arbitration Act, introduced 14 years ago in Ontario for
consenting
'believing' couples to voluntarily use religion to settle their family
disputes. This move, it was hoped, would help take some pressure off the
courts. Subsequently, a few Jewish, Christian and Ismaili Muslim couples
used religious arbitration to settle disputes.
In October 2003, Muslim leaders proposed that Shariah be included in the
Arbitration Act. There was virulent opposition to this proposal. A week
later, a group of Asian Muslim women launched a civil group,
International
Campaign Against Use of Shariah Courts (ICAUSC). Says founder member
Homa
Arjomand, "We realized that there was need for a global movement to
prevent
Shariah from becoming a legal option."
To settle the matter, the government asked feminist and former Attorney
General Marion Boyd to prepare a report on whether to include Shariah in
the Arbitration Act. In her report, submitted in 2004, Boyd recommended
that, to safeguard the rights of Muslim women, the Act be amended to
ensure
that recommendations from religious tribunals not be contradictory to
Canadian law.
Before the matter could go to Cabinet for discussion and amendment,
Shariah
protestors stepped-up their agitation.
On September 8, 2005, ICAUSC along with other Islamic women's groups
organized a protest in Toronto to prevent the government from including
Shariah in the Arbitration Act. Around 300 people participated in the
protest, which ended in a bitter war of words between Shariah
sympathizers
and those who opposed it. A similar protest was organized in London, the
UK, outside the Canadian High Commission the same day. The urgent
message
was that Canada is in danger of becoming the first Western country to
make
Shariah legal. Women's groups gained sympathizers as newspaper articles
and
activists joined hands with them.
The popular image of Shariah in Canada is of a system under which women
are
tortured and their human rights overlooked in the name of religion.
Detractors quote examples: one-sided divorce rulings overwhelmingly
supporting the husband or tacitly supporting husbands in domestic
violence
by taking away all rights from women.
On September 10, a group of 10 prominent women activists, including
novelist Margaret Atwood, chairperson of The Council of Canadians,
Canada's
largest citizen's advocacy organization, Maude Barlow and noted
journalist
June Callwood issued an open letter - 'Don't ghettoise women's rights' -
to
the Ontario government, asking it do away with the Arbitration Act. The
letter, which reminded the government of its Liberal-Democratic
principals,
read: "Allowing the use of religious arbitration will lead to
divisiveness,
the ghettoisation of members of religious communities as well as human
rights abuses, particularly for those who hold the least institutional
power within the community, namely women and children."
The government relented. On September 11, Ontario Premier Dalton
McGuinty
said there will be no Shariah law in his province and that he will move
to
ban all faith-based arbitration. McGuinty said that the boundaries
between
the Church and the State would become clearer with the complete ban on
religious arbitration. All religious communities are unhappy with the
premier's decision. The Act has, however, not been repealed yet; the
premier has only announced that his government will prevent use of the
Act.
Critics of the move say that the government has done a great injustice
to
women by failing to legalize the use of Shariah, which will continue to
be
used. Said Spokesperson of the Canadian Islamic Congress, Wahida
Valiante,
"A golden opportunity came Canada's way...In Canada, we have come a long
way in protecting the human rights of women. By bringing Shariah into
the
ambit of the Arbitration Act, the government could have come up with a
beneficial model that would have set a precedent for other countries to
follow." She emphasized that Shariah is not carved in stone and is
dynamic
and always evolving to meet new challenges facing Muslims not only in
the
West, but across the entire Muslim world.
The government was not convinced by this argument. Said Arjomand, "The
reality is that the practice of Shariah-based arbitration has continued
in
Canada for some time now. If we allow it to be made legal, then
political
Islam will work to oppress women legally." Arjomand describes 'political
Islam' as a force led by political power-hungry people working to
suppress
rights of women in the name of Islam. She includes oppressive regimes in
Afghanistan, Palestine and Iran as practitioners of political Islam.
Arjomand emphasized that it is very difficult to penetrate the Muslim
community in Canada and apply Western laws. "I know of women who agree
to
be the second or third wife under pressure from families using Shariah
to
settle disputes. Such women are under pressure from their husbands to
agree, and their refusal can result in them being packed-off to their
home
countries without their children."
Valiante disagrees. She says these claims are fictitious and that
calling
Canadian Muslim women "helpless" does them a great injustice. "Muslim
women
in Canada are an empowered lot. Shariah is a part of Muslim social
fabric
and will be continued to be used by them and their families. Legally it
might not be recognized, but it will be used through personal agreement
between the two parties and people will continue to abide by it." Skeptics,
however, say it is naïve to expect Shariah to change only because it is
being used in Canada.
The issue is moot, though: In doing away with the Arbitration Act, has
the
Ontario government thrown out the baby with the bathwater? Could it have
made changes to the Act to safeguard Muslim women? Where does the issue
of
Shariah application stand now? The women who have traditionally agreed
to
settlement through Shariah in Canada believe in and relate to that
system.
There is no reason to believe that these women will discontinue use of
Shariah in their personal life after the government's decision.
By arrangement with
Women's Feature Service
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