THE SECULAR ALLIANCE

THE SECULAR ALLIANCE

POSITION PAPER AGAINST FAITH-BASED COURTS

INTRODUCTION AND CASE STUDIES

In Canada, there are battered Muslim women claiming their husbands are invoking their God and Sharia-given rights to hit them. Homa Arjomand, Coordinator of the International Campaign Against Sharia Court in Canada, helps on average seven Muslim women a day leave their abusive relationships. Her case studies include Zari, an illiterate women who was physically and sexually abused by her husband so badly that a neighbor reported her screams to police. The local Imam Shaik Roohi then told her: “You must undo the harm you have caused your family. A stranger had no right to interfere in your private life and your marriage. We are Muslim not westerners. We have rules for everything and if you don't obey the rules then you will be in trouble…The law of Islam allows your husband to discipline you and his children out of love for you.” When her husband returned from prison she was not allowed to inform Children Aid Society and was forced to live with his new bride.

In a Toronto-based case, the Sharia was used to force a 15-year-old girl to leave school and marry an older man. She then separated after being abused and impregnated at 16. While in Canadian secular court underage marriage and abuse would result in criminal charges and the involvement of Children’s Aid, the Sharia tribunal sees no crime, allowing public criminal law to be dealt with as private family law. Since children and women in these situations are young and uneducated, how will they know any differently? How have we as a society gotten to the point where we’re actually seriously considering allowing such outrageous incidents?

RAISING MULTICULTURALISM TO AN IDEOLOGY

Multiculturalism, while superficially admirable, has now been taken to a dangerous ideological extreme. “Multiculturalism is based on some fundamental misconceptions,” says former president of the Institute for the Secularization of Islamic Society Ibn Warraq. “There is the erroneous and sentimental belief that all cultures, deep down, have the same values; or if these values are different, that they are all worthy of respect. Multiculturalism, being the child of relativism, is incapable of criticizing cultures, or making cross-cultural judgments. Not all cultures have the same values and not all values are worthy of respect.”¹

What must be cherished above religious freedom and group rights, are individual, universal human rights. “Rationality, in the sense of an appeal to a universal and impersonal standard of truth, is of supreme importance to the well-being of the human species,” said British philosopher Bertrand Russell.² Cultural criticism is not to be equated with racism or fascism. Russell in “the Ancestry of Fascism” teaches the danger of abandoning objective truth and instead choosing doctrines based on political grounds or for political correctness, as was made famous by Hitler. The concept of universal human rights does not have to mean uniformity of culture and revolting against globalization does not have to turn into a revolt against the universality of freedoms.

Clearly, most people understand that multiculturalism can easily go too far. In the Wyoming murder of Matthew Shepard, the “gay panic” defense, whereby an individual goes temporarily insane when propositioned by a member of the same gender, based its effectiveness on social fear and disapproval of homosexuality, a position backed up by the Catholic Church. In other words, the defense was claiming immunity for murder based on southern US anti-homosexual culture. The judge and the general populace were not fooled by this disgusting and perverted use of multicultural ideology.

The executive summary of the Boyd Report states: “Religious arbitration can allow the people in dispute to select a shared set of values and rules that may be different than Ontario law.” In fact, the Ontario human rights code is a universal declaration that transcends religion, culture, ethnicity, gender, and all group distinctions expressly protected under the very first article of the Code. The first line on the Ontario Human Rights Code website declare: “The Ontario Human Rights Code (the "Code") is for everyone.” Article 15 of Canadian charter of rights and Freedom proclaims: “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.”

If it’s true, as often claimed, that Muslim groups will not be allowed to violate the Canadian Charter of Human Rights, or that the Sharia is at its core in agreement with Canadian law, then what will be gained through Sharia courts? But, as is far more sensible, if Sharia laws at their core violate the spirit, values and ethics of the Charter, then their use is discriminatory against the individuals making up these groups and as such have no place in this country. Canada must recognize the rights of its citizens above and before its communities or else we deny segments of society the basic rights everyone else is entitled to. Doesn’t recognizing more than one set of values for different categories of citizens amount to racism of the sort that was practiced against slaves, women and minority groups for millennia. The only difference is that here the power rests in the hands of the authorities within the minority groups themselves. The question then is if there is any chance at all that this authority may abuse its power. If there is, then it is the duty of the secular external authorities to step in and take care of the vulnerable elements of each and every cultural category.

If the introductory examples were not enough to answer that question, consider the result of honouring religious freedom over individual rights in liberally progressive Sweden. Fadima Sahindal, after having her life threatened by her parents for refusing an arranged marriage, was told by police and politicians “to make peace with her parents.” The secular authorities failed to protect her and she was then murdered as an honour killing. Now, if that’s localized to Sweden, then why must TVOntario personality Irshad Manji bring a bodyguard wherever she travels in Canada. She’s a Muslim herself and only speaks out against certain totalitarian excesses of Islam, not the religion itself.

DOES SHARIA HAVE A COMMON SET OF VALUES IN ITSELF?

The fact is Islamic Law is based on a fundamentally different system and mutually exclusive set of values compared to Canadian law. While the Canadian legal system is one that is evolving and dynamical, the Sharia follows Quranic verses like “beware of new things for every new thing is an innovation and every innovation is a mistake.” Since the Sharia is closed to interpretation laws must be followed to the letter rather than adapted to specific circumstances. “Considerations of good faith, fairness, justice, truth and so on play only a subordinate part in the system,” says Islamic Law expert Joseph Schacht.³ Instead, Sharia has no common values that it follows but rather is subservient to the letter of law laid down in seventh century Arabian desert culture and thanks to its injunction against innovation, critical enquiry and change, still reflects this now wholly alien context. Cairo lawyer Nur Farwaj has called the Sharia “a collection of reactionary tribal rules unsuited to contemporary society”.⁴ Schacht concurs: “Islamic law reflects and fits the social and economic conditions of the early Abbasid period, but has grown more and more out of touch with later developments of state and society.”⁵

If the Sharia has one consistent value it is the emphasis placed on divinity, such that an authority representative of God decides arbitration. “For pious Muslims, legitimate authority comes from God alone, and the ruler derives his power from God and the holy law, and not from the people,” says Warraq.⁶ “According to Islam, personal freedom is available and permissible only in respect to matters which are not regulated by the injunctions and prohibitions laid down by the Quran and the Sunnah, for these are expressions of the inherent Divine Wisdom manifested through the Divine Will.” How different could this be from the western system, where the accused is judged in most matters of a crime against the state and is found guilty by a group of his or her peers? The emphasis on divinity is clear from the fact that the worst crime is not rape, murder or theft, but unbelief, punishable by death. The greatest crime is a crime against God!

THE PROBLEM OF CHOICE

The Boyd Report states: “The Review concluded that cultural groups should not be permitted to stop people from having access to laws and processes that are available to all.” Indeed, it is a requirement that all parties have the choice of switching to secular courts.

One must wonder though, how financially and socially disadvantaged and abused women will learn about their rights to refuse the arbitration or be in a position to refuse.

Maybe from the imams, who quote the Quran chapter 4 verse 34 “Men are the protectors and maintainers of women, because Allah has given one more strength than the other” to force their wives to submit to Sharia Court. Maybe from lawyers like President of the Islamic Institute of Civil Justice Mumtaz Ali, the leader in the campaign push for Sharia Courts, who asks Muslims “Do you want to govern yourself by the personal law of your own religion, or do you prefer governance by secular Canadian family law? If you choose the latter, then you cannot claim that you believe in Islam as a religion and a complete code of actualized life by a Prophet who you believe to be a mercy to all.”⁷ In fact, the Sharia court brochure (p. 9) tells Muslims that choosing not to go to the Sharia Court makes them non-Muslims. Sharia Court is only off limits when it comes to Muslim women who are traditionally kept from pressing charges against the “head of the household.”

And how exactly will an abused twelve year old understand the concept of rights to the point of actually going against his own parents and asking for the secular court? The state must be protecting these vulnerable elements that cannot protect themselves. They must do so all the more when these elements are reaching out to them.

The Boyd Report stated in its Recommendations, section 8, page 133 : “The Review did not find any evidence to suggest that women are being systematically discriminated against as a result of arbitration of family law issues. Therefore the Review supports the continued use of arbitration to resolve family law matters.”

Perhaps Boyd never heard from the Canadian Council of Muslim Women, who have spoken out on the imposition of Islamic law, making it clear Canadian Muslim women wish to live under Canadian secular law and the universal human rights enshrined by the Charter of Rights and Freedoms. They speak of Muslim women being intimidated into using the Sharia court where inheritance laws and alimony, division of property and custody all favour men. In the latter case, for example, the age of the child is the only factor in deciding who gains custody. Keeping women subjugated and uneducated makes it even easier to impose a continued cycle of intimidation and communal pressure with the goal of making Sharia the natural, divine and unquestionable “choice.”.

THE WISE INDIVIDUAL LEARNS FROM OTHERS’ MISTAKES

With the above examples and arguments, and learning from the disastrous international experiments, it is no surprise the NDP has come out against arbitration in family law and that Quebec has banned Sharia Court.

It is indeed interesting that in the west the women’s “choice” frames the center of the debate, while in countries run by Sharia rules the concept of choice has no meaning. Internationally the Sharia experiment has been an abject failure. In Malaysia Sharia has been used since the mid 1990’s, making it a crime to dispute any fatwa (authoritative legal decision). “Very few Muslims have the courage to question, challenge, or even discuss Islam in public,” writes Zainah Anwar of the Malaysian feminist network Sisters in Islam. “They have been socialized to accept that the religious authorities know best.”

Speaking on the Sudan, novelist and atheist Rachid Boudjedra says “when Nemeiri [head of Sudan] wanted to apply the Sharia it didn’t work. The experiment ended abruptly after some hands and feet were chopped off…There is a reaction against the mass of Muslims against this sort of thing…Islam is absolutely incompatible with a modern state.” ⁸ Egyptian lawyer and essayist Fraj Fada has published a pamphlet entitled “No to Sharia.”

Since the adoption of Sharia in Pakistan attacks on women have increased. “The Sharia bill is a means to control women and marginalize them instead of bringing in a just order. It is a law that facilitates aggression against women but ignores the corruption in the country and it disregards violence against women, says Jan Goodwin.”⁹

If you are thinking that these atrocities apply to other countries but could never happen in Canada, ask yourself what makes Canada different. Is it not those universal human rights that protect each and every one of us, and are they not then worth defending at all costs for every single citizen. Many of the one million or so Muslims in Canada come from the countries just mentioned and many were at the center of the struggle against Islamic tribunals and laws in those countries, having fled in the hopes of removing themselves from the clutches of political Islam.

Many countries are learning their lesson. In Iraq under Saddam Hussein there was a powerful secular opposition trying to eliminate Sharia. The King of Morocco announced an overhaul of Sharia that will give women access to divorce, custody and alimony and is it not interesting that Turkey is both the only Muslim country to formally remove Sharia law and the only functional democracy in the Muslim world. There is a connection between democracy, freedom and the removal of faith-based courts from the legal system. One can only hope this connection will be recognized in time.

¹ Warraq, Ibn. “Why I am not a Muslim.” Amherst: Prometheus Books, 2003, p.356.

² Russell, Bertrand. In Praise of Idleness. London, 1935, p. 107.

³ Schacht, Joseph. Islamic Religious Law.” In The Legacy of Islam, Schacht and Bosworth, eds. Oxford, 1974, 397

⁴ Taheri, Amir. Holy Terror. London, 1987 p. 212.

⁵ Shacht, Joseph. An Introduction to Islamic Law. Oxford, 1964, p. 75.

⁶ Warraq, p. 186.

⁷ Interview: A review of the Muslim Personal/Family Law Campaign. (1995).

Coordinated by Rabia Mills. Downloaded 21 March 2004 from the Canadian

Society of Muslims web site: http://Muslim-canada.org/pfl.htm

⁸ Barbulesco, Luc, and Philippe Cardinal. L’Islam en questions. Paris. 1986, pp. 203-214

⁹ Goodwin, Jan. Price of Honor. Boston, 1994.