When Kabul Came to Canada, and the Rabbis Fought To Make Shariah the Law of the Land

By Kathleen Peratis

Published September 30, 2005, issue of September 30, 2005.
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So busy have we been worrying that women in Iraq and Afghanistan are losing ground to officially sanctioned Shariah courts with power to control much of what matters in their lives — marriage, divorce, support, inheritance — that we hardly noticed that the ground under as many as 150,000 Muslim women in Canada has been shaky, too. Yes, in Canada.

A perfect storm of zealous multiculturalism, blind faith in alternative dispute resolution and charismatic Muslim leadership in Ontario, where 60% of Canada’s approximately 600,000 Muslims live, nearly resulted in allowing the “personal status” rulings of Shariah courts to be enforced in the courts of Ontario. Kabul comes to Canada.

When the disaster was averted earlier this month, one might suppose that Ontario’s Jewish community would have celebrated the removal of the threat. Instead, the Jewish community has threatened legal action.

Allow me to walk you through this fun-house mirror.

“Multiculturalism” is the creed that turns nationalism and individual rights inside out. One of its Canadian proponents, the late former prime minister Pierre Elliott Trudeau, dreamed of a Canada in which distinctive customs and identities could live side by side in harmony — no dominant Canadian identity, no melting pot, no official culture. In the United States, where the idea has little traction, multiculturalists’ demands are modest: for example, celebrating Kwanzaa in the fourth-grade holiday pageant. In Canada, where multiculturalism is mainstream and powerful, a cultural minority group might demand the keys to the school — and might even get them.

They also want to be the adjudicators of disputes within their communities. Enter alternative dispute resolution — mediation and arbitration — an increasingly popular alternative to slow, expensive and cumbersome courts. Arbitration, thought to be lean and mean, results in decisions that are officially enforceable so long as the parties have knowingly and voluntarily waived their right to go to court, and so long as the decision of the arbitrator is not a shocking violation of “public policy.”

Religious communities have operated their own tribunals here and in Canada for centuries without seeking, or needing, official enforcement of their orders. But in the 20th century, they realized that alternative dispute resolution is what their religious tribunals were doing, that official enforcement of their rulings might be available to them and that the possibility of official enforcement could be a handy lever.

Ontario’s Arbitration Act of 1991, which allows arbitrators to apply rules of law “designated by the parties,” was drafted with Christian and Jewish dispute resolution in mind. In 2002, Muslim activist Syed Mumtaz Ali, president of the Canadian Society of Muslims, was inspired to launch a campaign for the revision of the law explicitly to include Muslim tribunals within its purview. Following the government’s two-year study of the issue, an official report was released in December, which recommended to the Ontario attorney general that the personal status decisions of Shariah courts be enforceable, with some limitations, in the courts of Ontario, an unprecedented step toward the official establishment of Shariah in the Northern Hemisphere. (A similar attempt in the United Kingdom by the Union of Muslim Organizations, pursued for a while in the mid-1970s, did not come close to passage.) B’nai Brith Canada substantially endorsed the recommendation.

Anything wrong with that?

According to Horma Arjomand, and thousands of Canadian Muslim women who, like her, fled Muslim countries and Shariah for more secular environs, Mumtaz Ali’s campaign was a cruel joke. They know that Shariah, like all religious law, and the men who enforce it, like all religious courts, are heavily skewed in favor of men. Arjomand herself has counseled hundreds of women who have been abused in Shariah courts. She knows that vulnerable immigrant Muslim women with matrimonial issues do not in any sense “knowingly and voluntarily” waive their rights under secular law. She and other Muslim feminists formed the International Campaign Against Shariah Courts in Canada to combat Mumtaz Ali’s campaign, gathering signatures and garnering the attention of the local press.

Earlier this month, sounding more French than Canadian, Ontario Premier Dalton McGuinty announced: “There will be no Shariah law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians.”

This was not the result the mainstream Jewish community expected or supported, perceiving a threat to their own religious courts. However, the community’s right to operate such tribunals was never in doubt — only whether their orders could be officially enforced. Nevertheless, the Canadian Jewish Congress Ontario Division and B’nai Brith Canada reacted as if their religious courts were being shut down, ignored the jubilance of Jewish and Muslim feminists, and announced plans to mount unspecified legal challenges to McGuinty’s decision.

Feminists oppose official status for religious courts because no religious woman should feel that the state is on the side of religious law and not on her side. No citizen should feel that her government is giving its stamp of approval to a religious court that says that a woman’s testimony is worth less than that of a man, or that a woman’s behavior, in or out of marriage, is to be judged by different standards than that of a man.

Religious courts — all of them — will base their decisions on assumptions and principles that are at odds with secular notions of justice and equality. That is their right. We can’t stop them, nor should we. But in my name? In society’s name? No, thank you.

Kathleen Peratis, a partner in the New York law firm Outten & Golden, is a trustee of Human Rights Watch.

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