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Published in
Newsline and Azizah magazine
The
Shari’ah, for the most part, is not explicitly dictated by God.
Rather, Shari’ah relies on the interpretative act of the human agent
for its production and execution. Paradoxically, however, Shari’ah is
the core value that society must serve. The paradox here is exemplified
in the tension between the obligation to live by God’s law and the
fact that this law is manifested through subjective interpretive
determinations. Even if there is a unified realization that a particular
positive command does express the divine law, there is still a vast
array of possible subjective executions and application. This dilemma
was resolved somewhat in Islamic discourses by distinguishing between
Shari’ah and fiqh. Shari’ah it was argued, is the Divine ideal,
standing as if suspended in midair, unaffected and uncorrupted by
life’s vagaries. The fiqh is the human attempt to understand and apply
the ideal. Therefore, Shari’ah is immutable, immaculate, and flawless
– fiqh is not.
Khaled
Abou El Fadl,
Islam and the Challenge of
Democracy,
Princeton 2004.
I’ve
been reading and watching the debates
about the Islamic Tribunal in Ontario and wondering how, as a Muslim
woman living in Canada will this affect me. Will I ever use it? Will my
husband misuse it? (I hope not!) Will my children benefit from it? To my
understanding, whether we are moderate, conservative or progressive
Muslims, to some extent we all implement Sharia in our daily lives. When
it comes to birth, death, marriage or divorce, we do fall back on
Islamic law. Given an option, I think I’d rather have family
matters settled through the circle of my faith as some of my brothers
and sisters in the Jewish community already do.
But
what is Sharia anyway? The meaning reflects flowing water and fluidity.
Ideally Sharia is based on four Sunni schools of Islamic jurisprudence
plus the Jaafri school of thought, being flexible and adaptable to time
and place. (I understand that the Muslim Court of Arbitration has taken
the different denominations into consideration). In terms of
women’s rights, an in-depth understanding of Sharia will show that it
was implemented to support women and many recent studies prove that it
did. Judith Tucker’s book In the House of the Law, is only one
reference of how Sharia favored women and gave them rights to marriage,
divorce, voting and inheritance 1400 years ago. Ironically those rights
were later usurped through colonization and patriarchal dictatorships.
It’s important to note that Sharia is not divine but man-made
(literally in some sense) so it’s open to misuse as has been the case
for many centuries.
My
concern like everyone else’s is that we don’t want Sharia in Canada
to take the shape of the dreaded Taliban regime. As a Muslim woman
keenly involved in the development of Canadian Muslims, I understand and
appreciate why women are afraid and I’m on record as having spoken out
against gender apartheid. However, to be fair, I don’t think the
intent for setting up an Islamic Tribunal is to oppress Muslim women in
Canada. There are thousands of educated, strong Muslim women who can
oversee that injustice does not take place. (Note to Marion Boyd –
equal representation, both in sect and gender is imperative for a fair
working tribunal)
The
fact that dialogue and debate is taking place is a good sign because it
should alert the proponents of the Islamic Tribunal that they must have
equal representation and stay within the framework of Canadian law. At
the same time, passing judgment on those who oppose the Islamic
Arbitration service is not acceptable. Calling names and labeling
critics as being outside the circle of the faith happens in
dictatorships, which suppress freedom of expression – luckily in
Canada, difference of opinion is a way of life.
In
speaking to some Muslim lawyers, I discovered that family arbitration
has been taking place on an ad-hoc basis since Muslims came to Canada.
Decisions, divisions and divorces have been performed in mosques and in
communities without any legal recourse and not necessarily in favour of
women. I also know from Dr. Azizah al Hibri, (Executive Director of
Muslim women Lawyers for Human Rights) that similar tribunals operate
successfully in some American States. She explains that properly
understood and implemented, Islamic Law can give Muslim women liberty
and latitude.
In
some ways, we now have a unique opportunity to bring about important
change and show the world how we can embrace the true and just meaning
of Islam – one that reflects gender equality and human rights. This
change can only come from within provided the community is united and
there is representation by women’s groups and liberal Muslims.
Sometime
ago when polemics were being spouted from the pulpits of some mosques,
the way to oppose this was not to close those places of worship but to
try and forge change. Through lobbying and media, change did take place
and now there is a conscious effort to be moderate. We still have a long
way to go, not by being critical alone, but by working interactively and
exposing misuse of the pulpit.
The
last thing I wanted to read is that ‘Sharia is flawed’ (Toronto
Star Sep 7, 2004). It’s not Sharia that is flawed but the way in which
dictatorial and oppressive regimes have used it to suppress the rights
of women and minorities. These are countries where religion is used as a
bait to gain power or vet votes. Stoning, flogging and honor killings
were never a part of Sharia and it’s up to us to see that it never
happens here. There’s absolutely no reason why Sharia can’t be
updated and brought to par with life as it is in Canada today and be in
sync with the Canadian charter of rights and freedom.
The
implementation of a voluntary Arbitration court is meant for conflict
resolution and not confrontation. As such it deals with family law so
that progressive Muslims can still hold their head high and maintain
separation of church and state.
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