Muslim women who fled the strict Islamic laws intheir home countries to live in a more liberal environment in Canada may nowface a similar regime in Ontario, where a Muslim civilcourt for family disputes is being considered under the arbitration act.
“Someone like me who was forced to leave her home country, exactly becauseof the re-Islamicization in our country,” said Haideh Moghissi, asociologist at York University who came to Canada from Iran 20 years ago.
Moghissi has been interviewing migrant Muslim women in Canada for anacademic project involving diaspora, Islam and gender, and says shediscovered “a lot of resentment” towards the proposed Islam-based (Sharia)court.
“They have been brought to this country through the sponsorship of theirhusbands. They are dependent on (them) for various reasons and they simplydon’t have a say that the men have in cases like this. They can be pressuredinto arbitration,” she said.
In theory, the Canadian Islamic civil process will be entirely voluntary andparties in family legal disputes have the option of using the Canadiancourts instead.
But Alia Hogben, the executive director of the Canadian Council of Muslim Women, disputes the notion that the woman’s participation will bevoluntary. “It is very hard for a woman to go against her family, hercommunity and mosque,” she noted.
Hogben is less negative towards the concept of Sharia — the legalinterpretation of the Koran and other venerated texts under Islam — thanMoghissi. But both women agree that the Canadian Muslim leadership seemskeen on imposing its socially conservative views of women’s rights on theircommunity through the Islamic civil court.
Moghissi says that women living in countries where Islamic Sharia law isapplied do not receive equal treatment in such areas as divorce, childcustody, spousal assistance and wills.
She cites the fact that under Sharia, men routinely receive twice what isgiven to women in an inheritance. Islamic law also makes it harder for womento divorce their husbands, obtain long-term custody of children (they aredeemed the property of the father in Islam) or receive spousal supportpayments beyond a limited period of time.
“There are many reports of Muslim men, men from the Middle East who justkidnap children, whose custody is with the wife. They basically leave(Canada). It is a serious issue. In the last three years we have had manysuch cases,” said Moghissi.
It remains to be seen which version of Sharia will be adopted by theCanadian Islamic civil court, with the decision potentially affecting a700,000-strong Canadian Muslim community split along cultural, national andethnic lines.
Dr. Mohamed Elmasry, president of the Canadian Islamic Congress, counters that an Islamic civil court would have to abide by Canadian and Ontario lawand the Canadian Charter of Rights and thus will not be a replica of systemsin more repressive countries..
Elmasry, who has done his own share of Sharia-based mediation andarbitration, describes it as a “healing process” for a married coupleexperiencing a break-up. He says that a formalized Islamic civil court wouldhave the resources to develop a trained group of arbitrators and mediators.
“People usually go to their local imam (if there is a family dispute). Thereis no way to audit these cases, if they are successful or not. And there isno proper training for these people,” he said.
Meanwhile, another proponent of the new Islamic civil court concedes thatCanadian Muslim women would probably benefit in some cases, such asinheritance, if they took their family disputes to the more gender-neutralCanadian courts, which are covered by the Canadian Charter of Rights.
But “many people choose to (go through an Islamic civil process) as a tenetof faith or a tenet of principle. They feel that even though they would begetting less in this instance, they still feel more comfortable in resolvingtheir inheritance by Islamic principles,” said Riad Saloojee, a spokespersonfor the Council on American Islamic Relations Canada (CAIR-CAN).
Saloojee predicts that many Canadian Muslims will turn to the Islamic courtbecause it is quick, inexpensive and confidential, unlike the Canadiancourts. “That’s a draw for many people.“
CAIR-CAN, in contrast to other advocates of the Islamic civil court, avoidsthe usage of the term “Sharia.” Salougee explains that technically Sharia istoo broad a term in Islam for a process that covers just family law.
But Elmasry does not shy away from talking about a Sharia-based court inOntario that should all cover internal civil disputes among CanadianMuslims, including tenant-landlord relations and the dismissal of an imamfrom a mosque.
The Ontario arbitration legislation of 1991 was originally designed tohandle commercial and labour disputes and thereby lessen the load of casesin the provincial courts. However, after religious Jews began using theprocess to arbitrate internal disputes under the Judaic Halacha process, theleaders of the Canadian Muslim community decided to establish a similarsystem.
Tarek Fatah, a spokesperson and co-founder of the secular Muslim CanadianCongress, is concerned that Canada’s liberal multicultural tradition will inthe end accommodate an Islamic civil court without appreciating theconsequences of such an action.
“I think the crux of the matter is that (the Canadian Muslim leadership) isscared of the rights of women in this society. They are threatened by it andthen they are also threatened by the loss of their control over thecommunity,” Fatah said.
Meanwhile, Moghissi says a Canadian Islamic civil court will be the first ofits kind in North America and Europe. “Once it is implemented in one place,then it makes it easier for migrant communities or conservative elementswithin migrant communities to demand the same rights, based on example,” shewarned.