Sharia Law: A Canadian Controversy
by Kumkum Ramchandani

Canada’s approximately 700,000 Muslims, half of whom live in the province of Ontario, are sharply divided over the province’s endorsement of Sharia tribunals to arbitrate civil matters like inheritance, marriage, custody, divorce and family disputes. A 1991 Arbitration Law in Ontario has already allowed arbitration according to religious principles for some of the communities living here including Jews, Ismaili Muslims and Christians.

Not surprisingly, many Muslim women’s organizations are expressing their displeasure stating that they have not been consulted and that Sharia will create an unnecessary two tier legal system resulting in marginalization of the Muslim community. Some Muslim women, on the other hand, feel that an Islamic legal system will recognize their Islamic beliefs more clearly than a Canadian court. Fierce debates are being held in the media and within homes and public meetings.

A staunch crusader against the new law is social activist Homa Arjomand who fled Iran in 1989 with her husband and two toddlers after being tipped off that her life was in danger. She has set up an International Campaign Against Setting Up Sharia Court in Canada which has already been signed up by thousands of women. The petition states that the proposed Sharia tribunals are anti-freedom, anti-women, misogynist, anti-modernist and racist. It calls for religion to be declared the private affair of the individual and complete separation of religion from education for children under age 16 as well as prohibition of inhuman religious ceremonies and practice of religion that is incompatible with people’s civil rights and liberties.

The petition states, “We believe that all people who live in Canada are citizens with equal rights and should live according to same social laws and norms. We do not divide society into cultural, religious, national and racial majorities and minorities. We stand for equal and universal laws and freedoms for all humanity, which should embrace all, irrespective of sex, race, ethnicity.”

Arjomand cites a case to bring home the fact that Muslim law and secular law can be at odds. “I have a client in Toronto,” she states, “who was taken out of school by her parents at the age of 15 and was pushed to marry a 29 year old man under the Sharia law. According to the eyes of the Sharia they are married but according to the Canadian legal system they are not. At the age of 16 this young pregnant girl is going through separation because of abuse (verbal, mental, financial and sexual). In a secular court, the fact that she was forced to marry at a young age is considered a crime and her husband will be charged for assault and child abuse. As for her parents, they too will be charged…..however, in the eyes of the Sharia tribunal no crime has taken place and the matter is civil and can be resolved.”

She also cited another case where a Pakistani Canadian lady banker used to give all her salary to her husband and had to ask him for money even to buy a cup of coffee. She wanted to keep just $50 per month for her needs but the husband refused. They took the matter to an elder who decreed that because the wife had disobeyed her husband he could stop having sexual relations with her and could take another “temporary” wife to satisfy his needs. The woman now wants a divorce but is devastated because according to Sharia the custody of the children goes to the father.

Raheel Raza, a journalist and media consultant on Islamic issues, pointed out that in its original form, Sharia did give women rights and privileges and Sharia courts settled many legal matters in favour of women.

She emphasized, “We should be perfectly clear about the fact that it is not Sharia that discriminates against women – it is how it has been misused for centuries by men for control of women and power. The so-called Sharia used in some countries is not Sharia but a set of man-made laws specifically used against women and minorities.”

Alia Hogben, Indian-born President of the 900 member Canadian Council of Muslim Women (CCMW), is involving focus groups of Muslim women all over Canada to speak up strongly against the implementation of Sharia.

This is the position taken by the CCMW: “The Canadian Council of Muslim Women, a pro-faith national organization, makes a clear statement that we are not against Sharia, correctly defined, but what we are against is the application of Muslim family law. We know that there is no uniform understanding, interpretation or application of the law which is complex, applied differentially in different countries and in some instances the practices are detrimental for women. It is difficult to comprehend how it will be applied in Canada.”

It states further: “The idealization of Muslim law based on a patriarchal family model does not work for women. We suggest that as with any law, it is problematic to apply some aspects and not consider the totality of the system, its context and its underpinning principles. CCMW sees no compelling reason to live under any other form of law in Canada as we want the same laws to apply to us as to other Canadian women. We like the (Canadian) Charter of Rights and Freedoms which safeguards and protects our rights to equality. We know that the values of compassion, social justice and human rights, including equality are the common basis of Islam and Canadian law.”

Hogben cited the study carried out by the U.K.-based organization Women Living Under Muslim Law (WLUML). In the 2003 research paper “Knowing Our Rights:women, family, laws and customs in the Muslim world”, it was found that in the 15 countries it covered, laws varied greatly from country to country. It pointed out that “the fact that these laws are not sacrosanct but are man-made (literally so because women were excluded from the law making process) is often obscured by those attempting to gain moral and political authority from them.”

So why are some Canadian Muslims so keen on imposing Sharia? Points out Hogben, “Muslims today are facing a huge amount of hostility and alienation not only from outside but also from within the community. So they are trying to identify with something and asking questions like “what makes us Muslim?” Sharia is one answer to this.”

She adds that the “man looking after the woman” model is not conducive to Canadian Muslim women. “Look around you. Tell me of one Muslim family in Canada where the wife is not working as hard as the man – women in this society are working hard not only in the workplace but doing meaningful things at home like taking in sewing or babysitting.”

In October 2003, a 30-member council was set up during a convention to establish the Islamic Institute of Civil Justice. The head of the convention was President of the Canadian Society of Muslims, retired lawyer Syed Mumtaz Ali, who explained that Muslims in non-Muslim countries are required to follow the Sharia to the extent that it is practical. Significantly, only one woman was present at the meeting.

In recent media reports Ali has tried to allay the fears of Muslim women. He said that during any tribunal there will usually be two fully trained arbitrators hearing a dispute – one an expert in Canadian law and another in Sharia. If needed there will be a third expert and there will be access to a number of Islamic scholars. He also said, “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 conflict between the two, Canadian law will prevail.”

Dr.Shahrzad Mojab, Associate Professor and Director, The Institute for Women’s Studies and Gender Studies, University of Toronto, said that Canadian women of Iranian origin are absolutely traumatized at the thought of Sharia in Canada, even if its watered down and subject to Canadian law. “No matter what version it is, it is so open to various interpretations and implementations that it is almost impossible to come up with a unified law. If a piece of law is not universal then we are all susceptible.”

Dr.Mojab, who left Iran 20 years ago, pointed out that women from Islamic cultures in western countries are already under lots of pressure due to racism. “In order to rectify that we should not bring about separate laws for the community but fight racism from within by integrating with the laws of the land. True multiculturalism should be anti-racism. Women’s rights have to be upheld and this cannot be through Sharia but by fighting racism.”

She added, “I know that Canadian law is not perfect but we should work towards perfecting the existing law rather than marginalize ourselves with a separate law.”

A very important point is that these Sharia tribunals will be voluntary, advocates of the new proposal point out. However, the women’s organizations are sceptical of this. Most women will be pressurized to follow Sharia because not to do so will mean they are not “good Muslims”, they point out. At particular risk will be the new female immigrants and uneducated women who have no means to know their rights under Canadian secular law. In a TV interview, Hogben said that for a woman of faith, if she does not adhere to Sharia, she can be accused of blasphemy or apostasy.

In an opinion piece in the popular daily newspaper Toronto Star, Imam Hamid Slimi, chair of the Sharia Committee, Islamic Council of Imams-Canada and a member of the International Muslims Organization of Toronto, said, “Women should have nothing to fear or to be sceptical about the institute’s (Islamic Institute of Civil Justice) motives. In fact, many women, in the absence of an authoritative Sharia tribunal, are deprived of a chance to be represented or heard, especially in cases of divorce.”

Saeeda Hassan, who came to Canada from Ethiopia, said that she was married under Sharia in her native country and sought divorce under the same Muslim law. She said she was satisfied with the way the law settled her case against her husband. “In some African countries, Sharia works well for women,” she feels. “We should not rule it out completely.”

So vociferous has been the anti-Sharia women’s movement in Canada that the Ontario government has set up an inquiry to deal with their concerns. Also in focus is the fact that Britain, when faced with a similar situation, decided strongly against ratifying Sharia tribunals. Ontario’s attorney general has tried to defend the province’s stand by pointing out that not only will using the tribunals be voluntary but criminal convictions and corporal punishment will not be allowed while the rights of children will not be arbitrated either.

Many women, however, have adopted a ‘wait and see’ attitude. Raheel Raza points out that all Muslims, whether modern or not, follow certain established rules of Islam in their life like halal and nikah (marriage). “I consider this Sharia in my life,” she says. “In Canada, there are already thousands of Muslims who live by Sharia, as in the case of pre-nuptial agreements. I spoke to a family lawyer and he settles many issues concerning life and death by Sharia law for his clients.”

She adds, “If I were to choose between western secular law and the Sharia of 1300 years ago – the real Sharia – I would prefer Sharia. I am neither against Sharia in Canada nor in favour because I think I would like to wait and see how they implement it. If it discriminates against women, then of course I am against it. However, this is also a chance for Muslim women to become involved and see change happen and bring about a law that is implemented in the way it was meant to be for women.”

Whatever the outcome might be, the recent controversy has been brought out into the open by the Muslim women of Canada, many of whom have fled oppression in their countries of origin to live peacefully and equitably in this country which provides strong values of freedom and multiculturalism. For many, it has been the first time in their lives that they have been able to voice their opinions openly.