Sharia as Family Law in Canada?

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Some Canadian Muslims are proposing the implementation of sections of Shariah (Muslim law) to settle family disputes outside the court system through arbitration committees or tribunals. Due to provisions of the Arbitration Act, the arbitrated agreements may be accepted by law, resulting in a bypass of the court system.

The Canadian Council of Muslim Women (CCMW) has concerns about such a move. We see no compelling reason to live under any other form of law. We want the same laws to apply to us as to other Canadian women. We prefer to live under Canadian laws, governed by the Charter of Rights and Freedoms, which safeguard and protect our rights. Although the judicial system is not perfect, we know that there are mechanisms for change. Because some believe that Shariah is sanctified by divine authority, it is not as easily subject to change.

We are also concerned that, in deference to their religious beliefs, some Canadian Muslim women may be persuaded to use the Shariah option rather than seeking protection under the law of the land.

In 2003, Women Living Under Muslim Law (WLUML) completed a research study entitled “Knowing Our Rights: Women, family, laws and customs in the Muslim World.” The study looks at 15 countries that apply Shariah law and demonstrates the various understandings and implementations of Shariah and how these affect women.

There is no agreement among Muslims on the laws of Shariah. For example, some countries where Muslim law is applied, such as Tunisia, have interpreted the law as limiting marriage to monogamy, while others, such as Pakistan, allow polygamy if the first wife agrees. In some Shariah schools of jurisprudence, inheritance laws favour males, a husband can divorce his wife leaving her without legal recourse, financial support for wives can be for a limited time period, granting of alimony is questionable, division of property can ignore women’s interests, and child custody can be given to fathers according to the age of the child. There is also ongoing debate about the static or evolving nature of the jurisprudence and its adaptations to the realities of today’s world.

Sharia is not divine law. Although it is based on divine text, the Quran, the injunctions were interpreted more than 100 years after the death of the Prophet Mohammad by jurists in different countries who themselves insisted that these were but interpretations. Shariah is a vast, complex system of jurisprudence; it is interpreted differentially in different countries and we question how, why and by whom it will be implemented in Canada. What will be the role of the arbiters and what will their training be in a complex and variant system of law, and who will ensure the competence of the individuals who serve as jurists?

We understand that because there are inefficiencies or ineffectiveness within the court system, there is a growing alternative system of law outside the courts in an attempt to address court backlogs and costs associated with resolving family disputes. Within this context, there is real concern that, rather than attempting to address the issues of the traditional family justice system, policy makers are focusing on mediation and other forms of settling disputes as an expedient and cost-saving option. The alternative system may have certain advantages, but consideration has not been given to the impact on women and children. “Family Mediation in Canada: Implications for Women’s Equality” (by Sandra A. Goundry, Yvonne Peters, Rosalind Currie, and Equality Matters! Consulting in association with the National Association of Women and the Law (NAWL)) discusses difficulties for women using publicly funded Canadian Mediation Programs. According to the paper, there appear to be no criteria to measure whether women’s equality is protected or undermined, family mediation services are “removed from state regulation and public scrutiny,” and “no public record detailing the nature of the dispute or the terms of the agreement is necessarily attached to a mediated case.”

Given these difficulties with mediation, we question what legal assurances will be put in place to ensure Muslim women’s rights are protected when they obtain binding arbitrated agreements using Shariah. It is worrying that there may not be any monitoring of women’s equality rights. Further, the proposed binding arbitration within a realm of “privatization and removal from public scrutiny” should be a major concern to law makers in terms of justice and equality of both parties. Canadian Muslim women may be treated differentially from other Canadian women in family disputes regarding marriage, divorce, property settlements and child custody.

Will there be any provision within the court system to ensure that agreements do not result in unfair or unjust settlements for Muslim women, and that there are no inconsistencies with Charter values? Will there be legal representation for women? Will there be a two-tier system of justice for Canadian Muslim women comprised of binding arbitration according to Shariah and the court system as an overseer?

We acknowledge the well-meaning intentions of some to reflect the sensitivities of Canadian Muslims, and for their need to have a presence and some power in society to ensure their interests are met. However, the introduction of a Shariah council may not solve the problem and may in fact exacerbate the issues for families. We are concerned that there is an idealization of Shariah and a lack of understanding of the impact the practices will have on Muslim women.

CCMW’s objective is to assist Canadian Muslim women to live under Canadian law with its emphasis on equality and justice, which are the cornerstones of Islam and should be the basis of any Muslim law anywhere. Please see our website at www.ccmw.com for more information on CCMW.

CCMW plans to collaborate with the National Organization of Immigrant and Visible Minority Women of Canada and NAWL to research the questions we have raised; to write about the findings; and to write a paper for Muslim women, politicians, sister organizations and the media about the ramifications of adhering to Canadian law or to Shariah law. The paper will be written in easy to understand language and will be translated to ensure its accessibility by all Muslim women. We will use these materials to advocate for changes in Canadian law if necessary so that there is equality for all Canadian women, regardless of race, religion or ethnicity.

CCMW is cognizant that our stand regarding Shariah places us in a difficult position. We are a pro-faith organization of Muslim women. We do not want to provide further ammunition to those who are keen to malign Islam. Yet we must be honest about issues that affect us within the Muslim and non-Muslim communities. Silence is not an option.

We hope to have the support of other women’s organizations and other religious groups to ensure that Muslim women’s rights are protected under Canadian law.

Alia Hogben is the Executive Director of the Canadian Council of Muslim Women.