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 ï¿½ which in September came after a year long raging controversy ï¿½ 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 naï¿½ve 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