Muslim religious tribunal to settle family disputes a regressive step: Many Muslim women fear unequal treatment if sharia law applied here

Sheila Pratt, The Edmonton Journal, September 26, 2004
 
When Razia Jaffer moved to Edmonton from Kenya with her family years ago, she assumed she'd be living under Canadian law enjoying the rights of all Canadian women.

But like a lot of Muslim women in Canada, she's worried these days that access to those basic rights is threatened by a proposal for an Islamic Institute of Civil Justice in Ontario.

This would allow Muslims in that province to bypass provincial courts and settle family disputes according to sharia or Islamic family law in a religious tribunal under Ontario's Arbitration Act. The results would be legally binding.

Jaffer, president of the national board of the Canadian Council of Muslim Women who recently moved to Calgary, says Muslim women are determined to resist this move. And rightly so.

Women are not treated as equals in sharia law, she says. Women are denied custody rights in divorce. In the event of family breakup, the father gets full guardianship of boys aged seven and older and girls aged nine and older.

Women do not get equal division of matrimonial property and alimony is only mandated for three months. Men can divorce women unilaterally. In inheritance, women get only half of what a brother would get.

Advocates of the institute say the concerns about women's rights are overblown because the arbitration agreements would have to reflect Canadian laws. But with sharia law so directly in conflict with some Canadian laws, it's hard to see how this would work.

"Having met with some of the proponents, it is incomprehensible how their traditional perspectives will be consistent with the Charter or the Ontario Family Law Act," says the council.

Under provincial matrimonial property laws, there is an equal division of assets after divorce. In child custody, Canadian law is based on the best interest of the child.

Toronto lawyer Mumtaz Ali, founder of the Ontario institute, agrees that child custody cases should not be part of a tribunal's mandate.

But it gets more complicated. There are four distinct schools of sharia jurisprudence. Who will decide which one to use?

What's also unclear is how widespread support is for this religious tribunal. Over in Ottewell in Edmonton's southeast, the Ahmadiyya mosque houses a moderate branch of Muslims who believe in equal education for male and female children. Visiting from Toronto is Maseem Mahdi, a thoughtful, soft-spoken religious leader who has some sympathy for women who fear application of sharia in Canada. Some of them come from countries where extremists have distorted sharia, says Mahdi, adding he doesn't think the institute will go ahead.

If it does, this would be the first time a western nation allowed sharia law to be used in legally binding arbitration.

In Alberta, the debate has barely begun. Institute founder Mumtaz Ali briefly visited Edmonton last May but no one has approached the provincial justice department. Two weeks ago, B.C. Attorney General Geoff Plant rejected the idea of allowing sharia law for legally binding arbitration involving divorce and family issues. Quebec law specifically prohibits use of binding arbitration for family matters on the grounds that such affairs are best left in the public sphere of courts.

To keep this in perspective, it's important to remember that religious leaders of all stripes, be they Catholic priests of imams, already provide counselling and informal advice to couples on family matters. What's different here is giving the religious laws legal standing. That's the rub.

It's also true that in recent years, many divorcing couples like to avoid the courts and use an alternative like mediation, because it is less adversarial and a lot less expensive. In fact, Alberta has such an alternative called judicial dispute resolution. There's one big difference though. Unlike the proposed sharia tribunal, these alternatives are based on provincial family law -- not religious-based law.

Also, husband and wife voluntarily choose to go to mediation rather than courts. That assumption is crucial to the fairness of any binding arbitration.

That kind of voluntary choice won't be available to many Muslim women, says Jaffer. The pressure from religious leaders, family and community to accept the Muslim court will be immense. If a "believing" Muslim woman chooses regular courts over Muslim family law, she risks being shunned by her community, says Jaffer. Who could endure that?

Especially vulnerable are immigrant women who don't speak English, are dependent on their husbands and live isolated lives. They may well be unaware of their Canadian rights. How can they make a voluntary choice about whether a religious tribunal or regular court is in their best interests?

Advocates of Muslim tribunals point to the fact that Orthodox Jews in Ontario have used Beit Din tribunals based on rabbinical laws to settle family disputes for 20 years. The comparison, however, is not particularly apt. The Jewish tribunal serves a small minority of that community so there's not the same pressure to conform. The Muslim institute would have much broader application.

More importantly, just because one religious tribunal exists certainly doesn't mean creating more is a good thing.

Multiculturalism is a wonderful thing. But it was never intended that religious law supersede family law in this country. Let's hope Ontario pulls back from this idea.

spratt@thejournal.canwest.com