Shades of grey on Sharia

by Anver Emon

This commentary was first published in the National Post, July 29, 2005

In his July 22 National Post commentary ("Sharia's underclass"), Salim Mansur attacked the implementation of Sharia arbitration panels in Ontario. He cited approvingly Quebec's recent motion to quash Sharia family law arbitration.

Interestingly, Quebec does not allow family law arbitration at all, so its motion was little more than a gratuitous swipe at Islamic law without actual teeth. Like Mr. Mansur's commentary, it reflects the polarized nature of the debate on Sharia arbitration in Canada, with those on one side uncritically arguing "Sharia good" and opponents viscerally holding "Sharia bad."

A proper debate should be more nuanced. Proponents of Sharia arbitration, for instance, provide little guidance on what tradition of Islamic law they will utilize, and how they will be held accountable to standards of fairness and justice, not to mention to the rights and freedoms under the Charter.

Family law arbitration is a well established practice in Ontario and is nothing new. There are good reasons for allowing it to continue: Family law arbitration provides a consent-based, lower cost alternative to expensive court proceedings, and is an efficient means of resolving disputes in the face of an already overextended court system.

But of course, as Mr. Mansur notes, there is a concern with Sharia arbitration that even if the parties consent to arbitration, the substantive doctrine of the tradition will unduly prejudice against women. Certainly, the historical tradition contains rules which, if applied here, would disadvantage women seeking settlements at the end of marriage.

But whether or not women will be disadvantaged depends on how one defines "Sharia." For example, under classical Islamic law, a husband did not need to petition a court to divorce his wife. He simply pronounced to his wife that she was divorced. A wife, however, had to petition a court for a divorce. Certainly this difference in pleading suggests a disparity in rights. But interestingly, modern Muslim nations often ignore this rule. Some require husbands and wives to file a petition with a court. Others, like Egypt, require the husband to provide a notarized document to his wife stating that she is divorced.

The point is that these Muslim countries have grappled with the Sharia tradition and the role a modern nation-state plays in regulating rights to arrive at a modified rule that arguably accords with the spirit of Islamic law.

Another example is polygamy. Many Muslim countries allow polygamy, although with some restrictions. However, Tunisia expressly bans polygamy by relying on a Koranic verse stipulating that men can never be just to multiple women -- justice being a requirement for polygamous marriages. Here the substantive rights of marriage differ depending on which Islamic argument one makes.

Certainly, Tunisia's ban on polygamy contradicts the historical tradition of Islamic law. But since Tunisia relies on a Koranic verse as justification, is its position any less "Islamic" than Pakistan's or Saudi Arabia's, both of which allow polygamy? Again the point is that "Sharia" is not simply an ancient code of rules. It is a process of analysis that must take into account more than just scripture, but also the context of the nation where it is being applied.

This brings us to a final point about multiculturalism under the rule of law. Opponents of Sharia arbitration argue that Ontario must be governed by one law. But religious arbitration in family law disputes allows the diverse communities in Canada to express their multicultural identities. In light of the above understanding of Sharia, there is a way to both preserve the rule of law and Canada's commitment to multiculturalism: Ontario's Arbitration Act should be amended to require that family law arbitral awards must be reasonable relative to what an Ontario Court would have decided had it heard the case. In other words, Ontario law is supreme. Muslim arbitral bodies, whether on the left or right, must grapple with the Islamic tradition prior to any arbitration in order to arrive at decisions that reflect the substantive spirit of both Ontario law and Islamic law. The arguments and results may be Islamic, but the decision parallels to a reasonable degree what an Ontario court would have done.

Certainly, one might suggest that this proposal undercuts the substance of the Islamic tradition, or makes it virtually irrelevant. But the Islamic tradition, to be a living one and not just dead letter, must be nurtured; any nurturing is necessarily contextual, which in this case, necessarily involves addressing both Ontario and Islamic legal traditions. This proposal preserves family law arbitration; takes into account that Islamic law is an evolving tradition; upholds the supremacy of Ontario law; and most importantly, puts the onus of grappling with Islamic law on the Muslim communities in Canada, which is where the onus should be.