Thursday, March 28, 2024

Top 5 This Week

spot_img

Related Posts

Sharia’s underclass

The unanimous resolution opposing “the establishment of so-called Islamic tribunals in Quebec and Canada,” adopted recently by the Quebec National Assembly, has placed the spotlight on the Liberal government in Ontario and its pending decision relating to the use of Sharia (Islamic law) under the province’s Arbitration Act.

The issue surfaced in 2003 when an organization calling itself the Islamic Institute of Civil Justice (IICJ) was established in Toronto to provide arbitration services to Ontario’s Muslims. The founder of the institute is Syed Mumtaz Ali, a Muslim lawyer originally from India, who argued that since Ontario’s Arbitration Act permits religious groups to settle family matters by applying their respective faith traditions—e.g., Orthodox Jewish groups—the same right should be extended to Muslim communities.

The IICJ then went public with its proposal that Muslims should arbitrate family disputes in its forum—and be bound by its decisions without recourse to Canadian courts. Given the attitudes toward Islam following 9/11, this predictably created a media feeding frenzy.

In June 2004, the Ontario government requested former NDP provincial attorney-general Marion Boyd to review the Arbitration Act and make recommendations respecting the use of Sharia in Ontario. Boyd sought the middle ground. In her December, 2004, report to Premier Dalton McGuinty, she sought the middle ground by supporting the inclusion of religious law in arbitration regarding “family law matters”—provided that certain, vaguely defined safeguards were put in place through legislation.

During Boyd’s consultations, the most well-considered opposition to the IICJ proposal came from the Canadian Council of Muslim Women (CCMW). The group’s basis for opposing Sharia is reflected in its response to the recent Quebec decision: “Quebec has clearly understood that different laws for different citizens leads to discrimination and has nothing to do with multiculturalism or Charter rights.”

The CCMW’s concerns are well-founded. Mumtaz Ali has explained Muslims in Canada are obliged to follow both Sharia and Canadian laws. But the two are based on different premises, and cannot be reconciled.

Canadian laws originate with a democratically elected legislature, and are subject to revision. Sharia, by contrast, is based on the premise that Islamic laws are inspired by the Koran, Islam’s sacred text. Since their origin is divine, they cannot be revised or amended by humans. Though there are different schools of Muslim jurisprudence, traditional Muslim scholars commonly insist on the sacredness of Sharia, and the idea that sovereignty in all matters belongs exclusively to God.

Sharia evolved between the eighth and 10th centuries of the Common Era as a codification of the era’s medieval, patriarchal value system. Like the Roman law, it is complex, intricate and impressive; and represents one of the great achievements of the Arab-Islamic civilization at its peak.

By the end of the 10th century, however, there emerged a consensus among leading Sunni Muslim jurists that innovative legal prescriptions should be avoided; and that, henceforth, the task of religious scholarship would be to imitate the early jurists who’d founded the major schools of Muslim jurisprudence (Hanafi, Shafi, Maliki and Hanbali—the Shia branch of Islam has its own school of thought, known as Jafari). As a result, Sharia became, and remains, a closed legal system locked in an ancient era. Modern post-colonial efforts to reform Sharia have mostly failed. Instead, militant Muslims have demanded full implementation of Sharia rulings.

In recent times, the world has witnessed such implementation in various Arab and Muslim societies—for instance, in Afghanistan under the Taliban, in Saudi Arabia under that country’s tribal monarchy, in Pakistan under various military dictators, in Iran, and even in parts of northern Nigeria. The more egregious aspects of Sharia rulings—such as stoning of women charged with adultery, amputating limbs for stealing, public lashings for taking intoxicants and bearing false witness, ritual decapitation for capital offence, the death sentence for apostasy—have particularly captured the attention of the Western media.

But even putting aside such brutal punishments, Sharia’s prescriptions for family matters show how incompatible it is with the values of our era. The inherent problem here is the sanctification of gender inequality. Sharia prescriptions rest on the Koranic verse, “Men are in charge of women” (4:34). Consequently, any IICJ ruling in an arbitration panel on marriage, divorce, child custody, guardianship, income and property settlement, if it is to be consistent with Sharia requirements, would—by definition—be in violation of the equality rights protected by the Charter.

Divorce, for instance, may occur by a simple act of repudiation by a man of his wife, or on charges of infidelity, or on the inability of a woman to bear a male child. The only obligation a man has is to observe a waiting period of three menstrual cycles to confirm if the woman is pregnant, and the payment of the amount of money for which the marriage was contracted.

Unlike in the West, under Sharia custodial rights presumptively belong to fathers. On matters of inheritance, a female child has only half the rights of a male child, and a widow’s right is restricted to a prescribed fraction (it may vary according to different schools of Muslim jurisprudence) of her husband’s assets. On these matters Sharia’s prescriptions would contradict not only the gender equality mandated by the Charter, but also the Ontario Family Act, and numerous other statutes.

Of course, the IICJ knows all this perfectly well. And so what is behind its initiative? The answer, as even a cursory reading of the IICJ’s Web site shows (muslim-canada.org), is that the group seeks to incrementally win recognition for the idea that Muslims should be permitted to live by their own laws, separate from every other Canadian. The IICJ thereby seeks to set a precedent for other nations with a Muslim minority. Boyd’s endorsement of Sharia law, therefore, unintentionally provides a trojan Horse for the global project of Muslim fundamentalists.

The argument that Sharia and Canada’s secular laws may coexist harmoniously is either a vain wish, or a cynical ploy. But it is not fooling the people who count. As Madame Fatima Houda-Pepin, a Moroccan-Canadian member of Quebec’s National Assembly, reminded me in a recent interview, modern Muslim women in Canada, though unapologetic when it comes to their faith and confident of their status in society, generally recognize that their rights and freedoms are best protected under the Charter. It remains a puzzle to them, as it does to others, why any government would entertain the proposal of encouraging the use of Sharia in this country.

Salim Mansur
Latest posts by Salim Mansur (see all)

Popular Articles