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[http://www.canoe.ca/NewsStand/Columnists/London/Salim_Mansur/2004/10/08/661653.html
Shariah for Ontario Muslims?
SALIM MANSUR, For the London Free Press
10/09/2004
Former NDP attorney general Marion Boyd is reviewing a bid to introduce Islamic faith-based law to settle Muslim family legal disputes. But Salim Mansur warns women and children would be vulnerable under such religion-founded rulings.
The controversy surrounding the use of Shariah, or Islamic law in settling Muslim family disputes under the 1991 Arbitration Act in Ontario will not likely cease, regardless of which way the provincial
Liberal government moves on the matter.
Premier Dalton McGuinty has appointed Marion Boyd, the former attorney general in Bob Rae's NDP government, to review the act and advise Queen's Park on how to proceed with the request to incorporate Shariah into the arbitration process.
Christians and Orthodox Jews are already permitted to voluntarily seek faith-based arbitration under the act, so rejecting the request for Muslims seeking similar process would be seen as discriminatory.
This is Boyd's dilemma, and she will require the wisdom of Solomon to meet the request and quell the controversy.
The Arbitration Act was one of Boyd's NDP legislative achievements, designed in part to speed the process of civil litigation and reduce pressures on the Ontario court system.
Since the act opened the door to faith-based arbitration, it was only a matter of time before a Muslim group would request that those provisions be extended to them.
That Muslim group is the Islamic Institute for Civil Justice, based in Toronto, and its lawyer is Mumtaz Ali. He wants Muslim personal law, or those aspects of Shariah dealing with family matters, recognized for arbitrating family disputes brought by Muslims to a tribunal, organized under the provisions of the act.
But it has opened a hornet's nest, and puts to the test not only the act, but also values by which Canadian society is defined as multicultural.
The opponents to Ali's request are not primarily non-Muslims.
The government would have found it easy to dismiss their arguments, however persuasive they might be, on the grounds that denying Muslims faith-based arbitration would be discriminatory.
It is the opposition coming from the Muslim community that has the government in a quandary. The obvious question is why.
For Muslims, the Qur'an is the sacred text, believed to be the word of God revealed to the Prophet Mohammed over a period of time.
The Qur'an states, "Obey God and His Prophet," and in this simple formulation lies the essence of Shariah.
Shariah means, in its original sense, "the path leading to water," hence the road, in Qur'anic usage, to the source of life.
In religious terms, it came to mean the path to good life as directed and regulated by the Qur'an.
But there is no uniform opinion among Muslims on how Shariah is to be understood, interpreted or applied.
Traditional religious authorities in Islam, beginning in the eighth century, viewed law as the revealed will of God preceding society and state and, thereby, subordinating politics to law.
Historical reality, however, was different, with politics invariably shaping Islamic law.
The discourse on Shariah is vast and complex. But the issue that is contentious is rather simple.
While religiously binding precepts are in the Qur'an, the task of identifying them, explaining them and laying down the method for their application is a human enterprise, constrained by its limitations.
The difficulty was partly resolved with the development of a system to narrate how the Prophet conducted human affairs within the guidance provided by the Qur'an.
Prophetic example was deemed exemplary and binding.
Yet the problem persists, since fallible human minds derive precepts and their meanings from the Qur'an, or as they narrate the prophetic conduct.
Moreover, Muslims became politically divided early in their history, and these divisions oriented their respective understandings of Shariah and its application.
Traditional Muslim religious scholarship asserted Shariah is not bound by time and space.
A consensus emerged among Muslim jurists in the 10th century that since Shariah was fully derived and explained, and the creative force of scholarship was exhausted, there was no further room for interpretation. Islamic law in the traditionalist view became a closed system.
In modern times, as Muslims were influenced by Europe's new philosophy and science, this closed system began to be questioned. Muslim modernists contended Shariah required understanding in the context of time and circumstances.
This debate remains unresolved.
Muslim-majority states emerging after colonialism did not uniformly adopt Shariah as the basis of their legal system.
In matters of finance, public administration, criminal law and international law, secular-based Western laws have been followed - with some amendments for local conditions.
It is in the area of family law - on matters relating to marriage, divorce, inheritance and the status of women - that Shariah regulations are followed. But even in these matters there is no uniformity, either in interpretation or in application.
The treatment of women in Muslim societies has received the most intensive scrutiny. Irrespective of how Qur'anic precepts relating to women are interpreted and explained, the reality is deplorable and indefensible.
It is the status of women that most strikingly sets Muslim societies apart from the West. It is Muslim women in Ontario, and the rest of Canada, who are horrified by the implications of recognizing Shariah as the basis for settling disputes within their families. The Canadian Council of Muslim Women has presented briefs to Boyd, expressing profound reservations about the Shariah proposal.
The council, and other Muslims, are not convinced by assurances Shariah law must be consistent with provisions in the Canadian Charter of Rights and Freedoms.
The key reason for that concern is a lack of trust.
Muslims who insist on applying Shariah, declaring those who do not abide by it are not good Muslims, tend toward a literalism in the reading of the Qur'an.
This is the slippery slope between the moderation of Islamic traditionalism and the sort of fundamentalism whose extreme expressions are to be found in Saudi Arabia and the former Taliban rulers in Afghanistan.
Muslims opposing introduction of Shariah in Ontario are not driven by fear of witnessing in Canada the depraved excesses of the Taliban. This is a red herring.
The concerns are real, primarily because Muslim women and children are vulnerable to decisions cast in religious terms, where their rights may be vitiated within the Canadian setting.
The reason is a code of silence practised by most Muslims for fear of becoming ostracized within a community that stresses unspoken loyalty to religious leadership.
Muslims immigrated to Canada for many reasons, among them to find a home beyond the power of Shariah.
Those Muslims, particularly women, found in Canada a freedom to practise their faith as they thought appropriate, and a refuge from conditions where abuse of power is sanctioned by religion.
Muslim opponents to the Shariah law proposal are concerned that, should the government concede to Ali's request, it would entrench the authority of those Muslims on matters where Muslims themselves remain deeply divided.
Ali contends Shariah, mediated through the Canadian system of law, would be a win-win situation for Muslims and Canadians. Those Muslims who want faith-based arbitration would not be denied Shariah, and Canada would extend the meaning of multiculturalism by demonstrating its unique capacity to evolve as an inclusive society.
Between proponents of Shariah and concerns expressed by the Canadian Council of Muslim Women, the weight of evidence from Muslim societies gives greater credence to the council.
The question the government must answer is how well prepared is the Canadian system of law to face an inevitable collision, and its consequences, with a system of law that insists its supremacy is based on extra-human origin?
Salim Mansur is a professor of political science at the University of Western Ontario. His column appears alternate Wednesdays.
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