Toronto
Star
Dec. 22, 2004
"There is room in
Canada for religious arbitration and secular law"
Before I could read
the final report by Marion Boyd released yesterday, Dispute Resolution
in Family Law: Protecting Choice, Promoting Inclusion, I received a
voice mail from a TV reporter saying, " I'd like your comments
against Sharia law and how it discriminates against Muslim women's
rights." I called back and said, "It's rather presumptuous of
you to assume that I'm against Sharia; if you call me back, I can tell
you the positive aspects of Shania."
I wasn't surprised
that she didn't phone back.
Within 24 hours of
the report being released, I've heard a slew of uninformed and biased
ideas ranging from calling anyone in favour of religious arbitration a
fundamentalist, to labeling Marion Boyd a white racist. The groups
opposing the establishment of a Muslim tribunal have effectively fanned
the flames of Islamophobia.
Since the hot
debate on the establishment of a Muslim Arbitration Tribunal started
almost a year ago, I've been concerned about where this is taking us.
Everywhere I've
been invited to speak on Islam, concern has been expressed about Canada
supporting a Taliban-like regime. The fact of the matter is that Ismaili
Muslims have been successfully using arbitration and mediation for some
time, just like our counterparts in the Jewish and Catholic communities.
The public doesn't
focus on the fact that this is not about Shania but about religious
freedom.
Unfortunately, the
word Shania has been grossly misused. Dr. Lynda Clarke, professor of
Religion at Concordia University, explains, "Islamic law as an
ideal pattern of life desired by God is known as Shania, i.e. `the way.'
All Muslims aspire toward Shania; but it can never fully be known by the
limited human intellect.
"Islamic law
as understood and applied is therefore called fiqh. Fiqh means
understanding. This understanding is acknowledged to be
human, fallible,
diverse, and to an extent (it's disputed) flexible and changeable,"
Clarke continues.
"Consequently,
there is a wide range of understanding of law in the Muslim tradition,
and different applications of law in the Muslim world."
To me, Shania is
also the core value system for Muslims; it's a code of moral and ethical
values that we implement in our daily lives in many different ways. In
terms of birth, death and marriage, even secular Muslims often fall back
on Shania.
Regarding women's
rights, a study of Islamic law shows Shania gave Muslim women rights,
based on knowledge of the society they lived in. One thousand four
hundred years ago, Shania gave women rights to inheritance, voting, and
decisions in marriage and divorce.
Judith Tucker's
book, In The House Of The Law highlights how Shania courts were
favourable to women during the Ottoman rule.
I understand and
appreciate the fears of women who have been subjected to male
patriarchal injustice in countries that use Shania as a crutch to
legitimize their oppression of women. This is why it's
imperative to
separate culture and politics from the faith, and take a balanced
approach without resorting to polemics.
As a person keenly
involved in the development of Canadian Muslims and being on record as
having spoken out against gender apartheid, I'm not blindly supporting
the Muslim tribunal.
As Clarke argues,
"For any group to claim that their fiqh (understanding) amounts
fully and
unmistakably to Shania is, in my view, contrary to the
workings and spirit of the Islamic legal tradition."
Therefore, I
believe it's imperative for the tribunal to reflect the diversity and
flexibility of Islamic law. To achieve this, much work has to be done to
create awareness and educate
the Muslim community.
One relevant issue
raised by the opponents of the tribunal is that uneducated immigrant
Muslim women may not know their rights under Islam, and might be coerced
into decisions that go against them. However, these women probably don't
know what their rights are under Canadian law — a challenge faced by
most immigrant communities.
Herein lies a
unique opportunity to educate, inform and bring about that change. We
can enlist help from enlightened Muslims as well as the Canadian
government so that values and respect of both systems are put in place.
This will help ensure we don't fall into the same pattern as Saudi
Arabia, Pakistan or Iran.
Let's not allow Shania
and Islam to be presented as murky and invite prejudice that lurks below
the surface of Canadian society. There is room in Canada for religious
arbitration and secular law without encroaching on each other.
Most of all, let's
remember it's a personal choice.
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