Will Canadian Law Bend?
By CLIFFORD KRAUSS
From an American Newspaper August 4, 2004
If the kimono or chicken curry eventually join the maple leaf, the hockey stick and the beaver as Canadian icons, then so be it. Thus goes the thinking of multiculturalism, the official doctrine of the government for nearly 50 years, and by now a value ingrained on the broader society.
The minaret has been welcome, too, in this otherwise secular society where fewer and fewer people go to church but more than a hundred mosques have cropped up in recent years.
But even here, tolerance has its limits, and the question of where to draw the line can be a tricky one, especially when an increasing number of immigrants come from societies with vastly different values.
A group called the Canadian Society of Muslims is testing those boundaries by establishing the Islamic Institute of Civil Justice to apply the legal code called Shariah, based on the Qur'an, to settle disputes over property, inheritance, marriage and divorce.
The prospect of Shariah's operating openly here has already stirred a powerful controversy centering on an uncomfortable issue for any liberal society with an expanding Muslim population that now numbers 600,000: Can a predominately Judeo-Christian society trust Islamic religious rules to protect the rights of all individuals?
The Muslim group is acting under an Ontario provincial law passed in 1991 that gave religious authorities the power to arbitrate civil matters as long as the people seeking arbitration do so voluntarily and are free to appeal those decisions in Canadian courts.
Under the law, Jews and Christians have settled a relatively narrow number of issues without going through the courts. Rabbis have granted religious divorces, decided on matters relating to kosher dietary laws and arbitrated business disputes. Catholic couples have gone to priests to annul marriages, while churches of various dominations have settled disputes related to inappropriate behavior of ministers and monetary disagreements within and between parishes.
But the Islamic Institute wants [the] arbitrators to decide a broader range of issues. For Syed Mumtaz Ali, 77, an India-born Islamic lawyer and scholar who is the driving intellectual force behind the Institute, a Muslim cannot be a Muslim without following Shariah.
"Basically, Muslims live a different kind of life from the Western life, which is secular," he noted in an interview. "Everything we [Muslim's] do is governed by religious law."
Muslim arbitrators have not made a single public decision yet, but Canada would presumably never allow the stoning of adulterous women or cutting off the hand of a thief, both allowable forms of punishment in some Muslim societies under an extreme variation of Shariah.
Critics say that Shariah contradicts the Charter of Rights and Freedoms, Canada's bill of rights, which guarantees the equality of men and women. Under Canadian family law, for instance, men and women have equal rights to inheritance and property acquired during a marriage.
Canadians voluntarily waive their legal rights all the time, but it is the obligation of the courts to ensure that they have independent legal advice before doing so. Critics of Shariah say Muslim women would be deprived of their rights because, even after emigrating, they frequently live in isolation from the broader society and are beholden to men who routinely tell them what to do and say.
"I don't see how it can be voluntary," said Shahira Hafez, 53, an Egyptian-born anesthesiologist and treasurer of the Toronto chapter of the Canadian Council of Muslim Women, "when all these women from Pakistan, India and Afghanistan are kept isolated in their own communities, do not learn English and only deal with the outer society through their husband and their husband's family."
As Mr. Mumtaz Ali sees it, there is no contradiction between being a good Muslim and being a good Canadian. "Shariah has the elasticity to adjust itself," he said, adding: "I draw the line where the Canadian law asks me to do certain things. I have to obey Canadian law."
The late Prime Minister Pierre Elliott Trudeau dreamed of a Canada in which distinctive customs and identities could live side by side in harmony. Turning nationalism on its head, there would be no dominant Canadian identity, no melting pot, no official culture.
H. Donald Forbes, a political science professor at the University of Toronto, said he cannot be sure how Mr. Trudeau would have responded to the idea of Shariah tribunals, "but I think he would go along." He added that as long as the arbitration is voluntary, Mr. Trudeau would probably have concluded that "this kind of meaningful accommodation was in the spirit of multiculturalism."
Nevertheless, Shariah is not generally accepted in other Western democracies, and some Canadian Muslim women - who say Muslim law is already applied behind closed doors - say efforts to apply it openly in Canada's most populous province would represent a dangerous precedent.
"Here in Canada, girls are segregated from boys at private Islamic elementary schools, then forced into arranged marriages through Shariah at the age of 13, 14 or 15 to men over twice their age," said Homa Arjomand, 52, an Iranian-born counselor for battered women. "How much choice do these women have?"
In response to such concerns, the Ontario government has appointed Marion Boyd, a feminist activist and former provincial cabinet member to review the 1991 arbitration law.
It would not be the first time laws have changed to balance religion and secular rights. A group of Canadian Jewish women pressed the federal government in 1990 to enact a law to help Jewish women seeking a religious divorce against recalcitrant husbands who under Orthodox rules have the upper hand in such cases.
In the end the arbitration law may be revised to assure that arbitrators are screened and trained, and that women entering arbitration have sufficient counseling to understand their Canadian rights. It may be narrowed to limit the powers of religious arbitrators, excluding such sensitive issues as child support, alimony and access to children in cases of divorce.
"How do we honor two commitments,
to multiculturalism and equity to the rule of law, that often seem to come
into conflict?" asked Ms. Boyd in an interview. "We have been struggling
a bit. There really are conflicting values.''