Ontario sharia tribunals assailed

Women fighting use of Islamic law
But backers say rights protected

Had she stayed in Iran, Homa Arjomand would now be dead.

All — all — of the women’s activists she worked with in Tehran have been executed, victims of a reactionary regime that ruled, and continues to rule, by strict adherence to Islam’s sharia law.

In 1989, she and her husband paid $15,000 to smugglers to help them and their two young children flee the country.

For three days, they rode on horseback through the mountains, sleeping in barns before finally reaching Turkey.

Two years later, the onetime professor of medical physics arrived in Canada as a refugee. And how grateful she was to be in a secular country, where female equality was the law.


That was then.

Last fall, Arjomand, now a transitional counsellor in Toronto for immigrant women, heard the province had quietly approved the use of Islamic law in Ontario’s Muslim community.

A group she’d never heard of, called the Islamic Institute of Civil Justice, had gained the right to hold tribunals, darul qada, in which marriage, family and business disputes can be settled according to sharia.

The 1,300-year-old body of laws and rules for living was inspired by the Qur’an, Islam’s holy book.

Arjomand was horrified.

“The last thing I expected in Canada, the last thing I want, is sharia law,” she says. “Women are not equal under it, therefore it is opposed to Canada’s laws and values. The government can’t let this happen.”

The government has no intention of stopping it.

Muslims can’t be excluded from Ontario’s 1991 Arbitration Act, which allows religious groups to resolve family disputes, says the attorney-general’s office. Hassidic Jews have been running their own Beit Din arbitrations based on Jewish law for years. Catholics, too, even Ismaili Muslims. Rulings are binding, but must be consistent with Canadian laws and the Charter of Rights.

“There are safeguards built into the act,” says Brendan Crawley, the attorney-general’s spokesperson, who has been fielding calls from the world’s press on the unprecedented decision.

“Participation must be voluntary by both parties and there is recourse if a decision doesn’t abide by Canadian law. They can appeal to the courts.”

Arjomand has heard all this and doesn’t buy a word of it.

Now head of the new International Campaign To Stop Sharia Courts in Canada, she and representatives from several concerned groups met last month with senior staff at the attorney-general’s office and with Sandra Pupatello, the minister responsible for women’s issues.

Arjomand told them flatly that under the guise of protecting religious freedom and multiculturalism — the fear, perhaps, of offending the Muslim community’s male leadership — they were about to let the rights of Canadian Muslim women be trampled on.

Most at risk are young immigrants, said Arjomand, who come from the Middle East or North Africa, where sharia is the law and has been used to subjugate them their entire lives. They know nothing different.

Now that sharia tribunals are to operate here, she says, many women will be socially and psychologically coerced into participating. To refuse would mean rejection by their families and the community — or worse.

“In a straight disagreement between a husband and wife, the husband’s testimony will prevail. That is sharia. Even those women who know they can appeal will not challenge an arbitration decision for fear of the consequences.”

Despite what the attorney-general’s office blithely assumes, she says, it’s unlikely decisions contrary to Canadian law will ever show up before the courts.

Sharia-approved but illegal activities already occur in Toronto, and she fears this will give strength to them. Muslim women are battered but don’t dare report it. Bigamous marriages occur. Among her clients are two 14-year-old girls who were married last year to older men, in defiance of Ontario law prohibiting marriage before age 16.

“This is child abuse, sexual abuse,” Arjomand says scathingly. “These girls were born in Canada. I want to tell them to leave and get them into group homes, but if they do they’ll be disavowed and isolated.”

In a May 7 letter to Arjomand, John Gregory, general counsel to the attorney-general, acknowledged “the oppression that some Muslim women experience in Canada.”

But that was not reason to deny the Islamic Institute the right to use the Arbitration Act.

“The family or community pressure that prevents (a woman) from going to court to dispute an arbitration seems likely to prevent her from going to court to assert her legal rights even without an arbitration.”

Moreover, he added, “you may be asking us to find a legal remedy for what is mainly a cultural or possibly religious problem. So far it is not clear to us what legal remedy would be effective and constitutional.”

Arjomand is now meeting with lawyers to see if they can find a remedy. A campaign Web site petition to halt the tribunals before they begin has already collected 2,056 names.

Alia Hogben, Indian-born president of the Canadian Council of Muslim Women, says she got the same “nothing we can do” response after meeting with Gregory. And a council letter to Premier Dalton McGuinty was “sloughed off.”

“We’ve consulted scholars and they tell us we can’t accept this,” says the retired social worker. “Everyone in the world is looking at Canada. A precedent can’t be set. We can’t give in.”

Hogben dismisses the province’s claim that Ismaili Muslims (followers of the Aga Khan) have used private arbitration for years without problem and therefore why shouldn’t the rest of the community. As she dryly points out, “Ismailis don’t use the sharia in their arbitrations.”

The women’s council’s 900 members come from all Islamic sects: Shia, Sunni, Sufi, Wahhabi, Somali and Ismaili. “It is difficult for us to speak out because we are practising, pro-faith Muslims who don’t want to provide ammunition to those who malign Islam.”

But they feel they must, she says, because the equality of the sexes espoused by the Qur’an is not reflected in the sharia — the laws that evolved over 200 years following the death of Mohammad in 632 AD.

“We see this as a women’s equality issue,” Hogben says. “Women are afraid they will not be `good’ Muslims if they don’t go along with it or that they’ll be accused of blasphemy. Why, why is it happening?”

She answers her own question with another question: “Is it because the government doesn’t want to be seen as anti-Muslim? But this is anti-women. Why should we be treated differently from other Canadian women?”

The international rights group Women Living Under Muslim Laws has warned that secular states like Canada must be careful not to fall into the trap of not interfering in old-world traditions out of misguided sensitivity. Trying to avoid discrimination against a whole group, it says, can lead to discrimination against its female members.

Like Arjomand, Hogben resents the contention of the Islamic Institute of Civil Justice and its head, Mumtaz Ali, that sharia arbitrations are an expression of Canada’s multicultural ethos.

“It’s a false argument,” she says. “Multiculturalism was never meant to take away the equality rights of a group, in this case Muslim women.”

Adeena Niazi, executive director of the Afghan Women’s Organization, is “in between” on the issue. If it’s applied correctly, Islamic law will be of benefit to women, she says, “but there has always been misinterpretation and misuse under the sharia, and women deprived of their rights.”

Niazi grew up in an Afghanistan that had an Islamic constitution in which women were educated and had careers. Only when the warlords and ultimately the Taliban seized power, she says, were sharia laws used to persecute women. She fled in 1988.

The majority of Canada’s 600,000 Muslims — more than half live in Ontario — are recent arrivals. Niazi says they often don’t speak the language, don’t know the laws, certainly know nothing about equal rights.

“We see women who are beaten and who take it because they are afraid of the community. That’s the reality.”

Many in the Muslim community, men included, don’t see how the arbitration tribunals can possibly work. Sharia differs among various sects and countries of origin. An interpretation in one country is unacceptable in another. In 2002, many Muslims around the world were outraged, for instance, when a Nigerian sharia court sentenced a woman found guilty of adultery to be stoned to death. After a global protest, the Nigerian high court overturned the ruling.

“Which model will be used?” asks a male critic, Mubin Shaikh. “There is too much division in the community for this to work. Sharia is complex. Wahhabis Muslims won’t go to a Sunni arbitrator and so on.”

The whole contentious idea of private sharia courts belongs to Mumtaz Ali, a retired Indian-born lawyer, president of the Canadian Society of Muslims and founder of the Islamic Institute of Civil Justice.

Ali has been working since 1991 to find a way for Muslims to fully practise their faith in secular Canada, to be able to follow the sharia, which is required if they are to be devout.

“Living by religious law is our whole life,” he says. In facilitating that, “the Ontario government is the most enlightened in the world. This is the multiculturalism of my friend Pierre Trudeau.”

The existence of sects with varying interpretations of Islamic law isn’t a concern because the model to be used is a “Canadianized sharia,” he says.

“It will be a watered-down sharia, not 100 per cent sharia. Only those provisions that agree with Canadian laws will be used. If there is a conflict between the two, Canadian law will prevail.”

(To critics, his remarks are confusingly at odds with an article written for the Calgary Herald in January by Syed Soharwardy, a founding member of the Islamic Institute, in which he wrote: “Sharia cannot be customized for specific countries. These universal, divine laws are for all people of all countries for all times.”)

Yes, Ali is aware that many Muslim women fear females will not be treated equally. They are wrong, he says: “That issue will not arise.”

He thinks they’re afraid because they don’t understand how the tribunals will work; indeed, few people do because details haven’t been released.

Ali says there will usually be two arbitrators hearing a dispute; one an expert on Canadian marriage, divorce and family laws, the other a sharia expert. If necessary, a third will act as umpire. They all will have access to a raft of Islamic scholars.

Initially, arbitrators will come from a panel of about 15 lay people, not all of whom will be Muslim. One, he says, is a retired Ontario judge and non-Muslim. Few imams will be used, however, because “they are not qualified academically.”

Most will have taken a course on the arbitration process (which differs from mediation, in which parties reach their own agreement). Ali says this training accounts for the delay in getting the tribunals going.

Husbands and wives will each have their own lawyer in attendance, he stresses, and arbitrators will be duty-bound to ensure no party is being pressured to take part or to accept a ruling.

In any event, “that does not happen here,” he says. “It happens in Egypt, in other countries, but not Canada. No one will be pressured. People think we’re bringing in Taliban law. Not so. No one is going to be stoned to death or have their hands cut off.”

As he notes, “the Charter of Rights doesn’t allow for cruel and unusual punishment.”

After speaking to a Muslim women’s group in Edmonton this week, Ali was asked why women should go near a sharia arbitration when their rights are covered by Canadian courts. “To be a good Muslim you must,” he told them.

But it is also in women’s own interests, he says. Just as Canadian law allows for prenuptial agreements, sharia offers marriage contracts. As an example, he says a woman could ask for the right of divorce — normally belonging only to men — to be transferred to her. Sharia also provides for her dowry to be returned to her.

Critics are welcome to monitor any arbitration — appearing as “a friend of the court” — if they think the rights of women will be violated, he adds.

This will come as news to the Council of Muslim Women, which was not informed that the arbitration tribunals were in the works, not asked for its views, nor to make recommendations. As far as it knows, the arbitrations will be private.

“It would have been in Mumtaz Ali’s interest to consult women’s groups,” says Annie Bunting, director of York University’s law and society department.

“Yes, Canadian laws will trump the sharia, on the books at least. But what impact will these tribunals have on women’s lives?”

That’s the question being asked by Muslim women living in Canada a decade or more. A Halifax woman called Alia Hogben to say that if the tribunals come to pass, she will no longer consider herself a Muslim.

Homa Arjomand no longer does, not after what happened to the women of Iran — and almost to her — under its draconian regime. She believes passionately that state and religion must be kept separate despite Canada’s well-intentioned allegiance to multiculturalism.

“Your beliefs should stay in your home, in your mosque, your church, your temple. We should remain a secular country with no separate rules for some groups, not when they discriminate against women.”

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(Listed if other than Religion News Blog)
Toronto Star, Canada
May 22, 2004
Lynda Hurst
www.thestar.com

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This post was last updated: Nov. 21, 2013