2005 Annual Meeting Presentation

The George Hull Centre Annual General Meeting
June 13, 2005

Guest Speaker: Alia Hogben, Executive Director, Canadian Council of Muslim Women

Muslim Women: Gender, Religion and Pluralism

Thank you to the Board and to Libby Ridgely, your Executive Director, for the honour of addressing you at your 20th Anniversary Annual General Meeting.

Muslim Women: Gender, Religion and Pluralism has become a significant topic of discussion in Ontario and in the world, because of the legal permission given under the provincial Arbitration Act for the application of private legally binding arbitration using religious laws in family matters.

This affects not only women but children as family laws affect the welfare of both these groups of individuals at times of divorce in the family.

Let me start with the Canadian Charter of Rights and Freedoms which guarantees our rights as citizens, and states:

"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." — Subsection 15[1] Charter of Rights and Freedom.

With this as the basis, the Canadian Council of Muslim Women (CCMW) is gravely concerned that the use of other family laws will adversely affect our equality rights and will discriminate against us because we are practicing religious women.

Canadian Council of Muslim Women
CCMW started in 1982, is a national women’s organization which is trying to deal with issues of being Canadian and being Muslim.

Our goals are to assist Muslim women to participate as fully as possible in all aspects of Canadian living, while at the same time, to learn more about our religion and its teachings of equality of all people, men and women equally.

We are religious women. This means we are proud of our faith and we want to work within our religion to ensure that the message of Islam underlies all our actions. We believe that Islam’s fundamentals are about social justice, compassion, and equality of all people.

We are also willing to challenge interpretations of Islam which adversely affect Muslim women or treat us as less than equal.

It is difficult for us to be publicly questioning some aspects of our practices, such as Muslim family law. We are very concerned that we not add to the anti Muslim sentiments which are all around us, but we cannot be silent about some practices/ interpretations which do not reflect the true values of Islam.

We are extremely concerned about the backlash which may occur against Muslims and other religious people if we keep expanding our demands for what I call “identity markers”, that is what constitutes our identity as Canadians and as Muslims.

Sharia/Muslim Family Laws
No Muslim will deny belief in Sharia. Sharia means the beaten path to the source of the water and is a metaphor to describe how we are to live.

What we are discussing is one aspect of Muslim jurisprudence, fiqh, which is the application of family law.

As an aside, we wonder why the proponents of Muslim law are not asking for all the laws as part of their religious freedom. For example, criminal laws are in the Quran so will this be step two of our demands for the practice of our religion? And if not, why not?

Some Muslims proclaim that all is divine, that is “God says”, and if all is divine and immutable then the rest of us are silenced and must obey. No one wants to be a “bad Muslim” as opposed to their definition of a “good Muslim.”

Like other religions, Muslims have a patriarchal model of the family, which places the man as head of the family and though the wife has certain rights she is expected to obey her husband because he provides for her.

We believe that the jurists were well intentioned men who interpreted the Quran and the Prophet Mohamad’s teachings, but the fact remains that these are their interpretations and are not divine.

Muslim jurisprudence, fiqh, is not a homogenous body of law. It is based on a number of schools of thoughts and even within each school there are more variations as practiced in different countries. Muslim communities, like other communities, are not monolithic as we come from different cultures, ethnicities and races. We have different historical backgrounds and it is false to assume that what will be practiced here will be uniform or agreed upon by everyone.

There is enough research, especially by the international network, Women Living Under Muslim Laws [WLUML] which demonstrates that anywhere in the world where there is application of any Muslim family law, these adversely affect women’s rights and welfare

So the questions arise as to which interpretations will be used and by whom? Who will claim legitimacy under Canadian law in the practice of Sharia/Muslim law? Will anyone care that Canadian Muslim communities will be further fragmented into smaller groupings according to someone’s interpretation of the law? Where will this end?

Ms. Boyd’s “faith based principles” is a coy and unclear basis for arbitration. What exactly is meant by this?

Some Muslims genuinely believe in the idealized Sharia and Muslim laws and have difficulty separating this idealization from the reality of the practices.

In the idealized version, the family is more important than the individual, the family has to have prescribed roles and responsibilities and each member lives in God consciousness and therefore cares for each other. The father enacts his head of the family role with kindness and the wife/mother accepts his authority because he provides for her and her children. As one female Islamist puts it, she would not empower a woman if it dis-empowers a family unit. Sadly she does not speak about what she will ask of men.

Some Muslims have said that the Sharia/Muslim family law which will be used in Canada will adhere to the laws of the land. Our question then is why introduce other laws which may have conflicting views on family matters?

No one can deny that Canadian laws under the Charter of Rights and Freedoms meet the principles of Islamic justice, equality and fairness, and no one has shown us why we need to seek another system of law in Canada.

We whole heartedly endorse that Muslim law can and should develop/evolve and that North American Muslims can play an active part in its evolution. But this should not be an experiment on the backs of women.

Pluralism/Religious Freedom
This is not an narrow issue, identified only with Canadian Muslims. It touches all of us.

Although the focus has been on the proposed application of Sharia/Muslim family law, we see the discussion as much broader than what is affecting the Muslim communities just now. The discussion involves fundamental issues such as what is pluralism/ multiculturalism; what is the role of the Charter and the protection of rights; how do Canadians view the separation of private and public spheres in our lives, and what is the distinction between State and religion in matters of law?

A recent editorial in The Globe and Mail blames the Quebec Legislature’s motion, that they will not allow other laws to be applied in Quebec, as un- Canadian. We wish that the Motion had stated all religious laws and not focused on Sharia/Muslim Family law, but we think the editorial misses the fundamental questions about the meaning of pluralism, religious freedom and the role of the laws of the land.

It is not The Globe alone, but some others whose neo-liberal stance of “anything goes” leads to the astonishingly simplistic understanding of pluralism and religious freedom. It is a form of racism and discrimination when anyone talks of allowing segregation of a community identified by one criteria, such as religion or race.

It is a clear misunderstanding of pluralism to expect that it allows for the fragmentation of a country by the privatization of the judicial system, or the development of parallel systems of laws, or by allowing different laws for different communities.

To propose the practice of religious laws in family matters is to divide us by the laws we each want to practice, and so here come the Evangelical Christians, the Jews, the Hindus, the Zoroastrians and all others with their own specific laws.

For us, Professor Jean-Francois Gaudreault-DesBiens in his article in the World Arbitration and Mediation Report of January 2005, rightly states this discussion of religious arbitration in family matters recognized by the State raises fundamental questions.

What is the role of the State in the issue of religious arbitration? Are there limits in private justice? Are all issues amenable to arbitration? What exactly is understood about multiculturalism within the framework of Canadian citizenship and what is the balance between the rights of individuals versus the rights of the group?

As he explains, religious freedom, as a substantive right, is really a “negative” freedom, that is, it is a freedom FROM the State and not a freedom FOR the State to give recognition as a “positive” matter. This means that the State should not intrude in matters of religion, nor should it interfere by giving legal acceptance to any one interpretation of a faith.

This also means that the State cannot disallow religious people to use their faith in mediation or other matters, but NOT with the sanction of the State. This would be a form of State paternalism where the State has no role.

He says that sadly there is a “Pollyanna” type of understanding of citizenship and multiculturalism amongst politicians and the people, which has led to a false framework for this discussion. The framework being used of the juxtaposition of religious freedom and equality is incorrect because the equality principle of the Charter is an over arching principle, even for religious freedom and multiculturalism.

The Canadian Charter of Rights and Freedoms enshrines, in section 2[a] religious freedom and in section 28, gender equality of men and women.

"notwithstanding anything in this charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons."

In his legal opinion, gender equality is elevated to the status of an over arching principle and overrides both freedom of religion section 2[a] and section 27s which is the multiculturalism provision.

He argues that there must be agreement and enforcement by the State of the core constitutional values such as equality and non discrimination, which should underlie all government policies.

Professor Gaudreault-DesBiens writes that arbitration as a form of private justice is effective in issues of commercial law but when it has the potential to affect the “status” of a person then it is a different matter. The State should have a keen interest in retaining control over constitutional values such as “dignity and equality.” This is because even if there is a slight risk of conflict between interpretations/application of religious laws and the values of international laws, then the State must not allow for private arbitration.

As he explains,

"while private arbitrators need only to justify their awards, if at all, to the parties who appear before them, State judges, not only must ground their reasoning on publicly debated norms, they must also appeal to a form of public reason….It is of utmost importance to look critically at situations in which the State, either by positive action or by omission, does not seek to decrease the possibility that constitutional values will be ignored."

Regarding consent, he recognizes the difficulties of fully comprehending what is entailed in free and voluntary consent of the individual, and the coercive powers of the community and the family have in this issue. This is another reason for the State to stay out of religious practices by not providing State sanction/approval.

He discusses how the establishment of parallel systems of justice, administered by groups who share a socio-religious identity, can lead to “identity-based legal pluralism.” This may lead to each group demanding collective rights and moving away from rights of the individual.

"The public recognition of identity-based communities that are partially or entirely self-governing raises important questions pertaining to the nature of citizenship in a democratic polity, and the sharing of sovereignty within political communities."

In the discussion of Multiculturalism/accommodation/recognition of ethnic communities, he argues that there have to be certain core constitutional values which must be deemed inalienable and not subject to the argument of multiculturalism or cultural relativity.

His warning is

"against the danger of adopting legislative policies which, under the guise of the recognition of differences, may end up undermining the legitimacy of both multiculturalism, as a social value, and private arbitration as an effective tool of dispute resolution."

CCMW Position
So what is our position?

We ask that NO religious laws are applied in family matters, in Ontario or elsewhere in Canada, and that the same laws should apply to us as to all other Canadians.

Our position is based on the following considerations:

The legal permission to use other laws has become a divisive issue, not because of Muslims, but because the government of Ontario’s legislation allows for the application of other laws in family matters. If the Arbitration Act made it clear that it cannot be used for this purpose then there would not be this discussion.

Our struggle is not against other Muslims but against the lack of forethought, and the lack of understanding of the effects that such a legislation has on women who are Canadians and Muslims.

The Ontario Family Law Act, developed over 30 years to reflect human rights of both men and women, will be put aside for laws which may not have the same values. Some have stated that these laws are based on Judeo-Christian values but this is no longer accurate. The last 30 years have seen the elimination of these values which also included the patriarchal family unit.

We want all family matters under the Family Law Act, which has a preamble of equality, shared partnership and shared parenting. We do not want another piece of legislation, that is the Arbitration Act, applied in family matters, because the Act’s primary purpose is for commercial disputes and does not have any underlying values or principles about the family.

We are concerned that in the name of pluralism and religious freedom, we will be discriminated against by being seen as “culturally different,” isolated and therefore not benefit from the same laws which are applied to other Canadians.

We are concerned that there is a purposeful disregard of the complexities of the application of Sharia/Muslim family law, a “washing of the hands” on the part of the State, which is as close to racism and discrimination as the State can be. It implies a lack of concern and caring for the individual rights of religious women in their “identity-based” communities.

We know that there is incomprehension regarding the nature of consent, as there is no recognition of the power of the communities, the family and religious teachings on individuals.

There is confusion between mediation/counseling and legally binding arbitration. We uphold the practice of individuals going to their elders, their religious leaders for culturally appropriate counseling and advice. But what we are concerned about is the legal approval of this process by the state. The state is there to protect citizens and not to hand over its legal responsibilities to private practitioners of family matters. Surely families are the cornerstones of society and we consider its protection of concern to the whole of society.

We don’t understand why religious women of any faith, should be excluded from the laws which are considered fair and just for other Canadian women and why we should not benefit from the laws of the land, as equal citizens. Why should a two tier, parallel system of law be implemented in Ontario?

We don’t understand why the arguments are couched in language which pitches religious freedom against women’s equality. Why should equality not be embedded in women’s religious freedom? We do not want to be isolated because of discrimination, and we certainly do not want to be isolated by the application of a set of laws which only apply to us and not to all Canadian women.

We do not want a transfer of legal state authority to untrained arbitrators who will have the power of the state for their decisions in family matters.

Ms Boyd states that the Charter will not apply to arbitration because of its private nature. We have been told that this is incorrect because if there is discrimination or jeopardy of rights, then the province will be accountable because the legislation is theirs. However, if Ms Boyd is correct, then we fear more about what will be covered under the guise of private but legally binding arbitration.

As we state earlier, this is not about one religious group, because we are just as concerned about the political dimensions of the movement of evangelical Christians, who are again pressuring for their version of Christian family values into law and how this will affect all of us.

[By the way, the Hasidic and Orthodox Jewish community are not using the Arbitration Act for their religious purposes such as the Jewish divorce the GET, and the Ismaili community is not using religious laws for their arbitration, and we cannot find out which Christian community is using either religious laws or the Act for their disputes. We raise this as the Boyd report and others are constantly arguing that other religious groups are using it and we have found otherwise.

Boyd Report
Because of the public outcry, not just in Ontario, the Premier appointed Marion Boyd to consider the current use of the Arbitration Act.

Ms. Boyd chose to name her report “Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion.” A puzzling title for in truth what she has promoted is exclusion and isolation of religious women.

The permutations regarding choice are not understood. There is choice and then there is choice. For Muslim women, the family and the community are extremely important, and for us to go against either is very difficult. It is not a matter of education or lack of intelligence, it simply is too difficult to strike out against any argument which uses religious teachings, the honour of the family and the acceptance of the community.

Add to these factors, the nature of private legally binding arbitration with the force of the law justifying it, what choices does a woman have?

There are many concerns with the recommendations. The most significant is that although Ms Boyd admits that she found no documentation regarding the impact of the use of arbitration, she makes a quantum leap in her very first recommendation stating that she found no adverse impact on women and therefore recommends private legally binding arbitration using religious laws.

Under the heading of Oversight and Evaluation of Arbitration, the report states:

"the government lacks information about the extent to which arbitration is used in family law and inheritance and how this mechanism has impacted on vulnerable people"

She admits that the Arbitration Act was problematic for family matters and so instead of considering any other alternative, proceeds to making 46 recommendations to ameliorate an inappropriate legislation.

The report has little consideration of women’s equality or welfare and appears to emphasize the use of religious laws as part of religious freedom, thereby creating the false juxtaposition of religious freedom and equality rights.

No decision has yet been made by the government of Ontario, and we hope that they will understand the magnitude of this issue and that it is not simply about multiculturalism or religious freedom. It is about the kind of Canada we want to have where all citizens are treated equally before the law, and not separated by any one factor.