In deciding to ban religious arbitration in provincial family law, Premier Dalton McGuinty has done a great disservice to a number of religious groups in Ontario, and nothing to safeguard the interests of Muslim women.
By apparently succumbing to the polemics of anti- sharia groups that confused cultural patriarchies, bad-faith husbands, and incompetent imams with the totality of what arbitration under sharia could offer, the Premier has missed a real opportunity to support Muslim women in Canada and human-rights activists the world over.
Let's be clear: With the ban on sharia arbitration, there will be no positive gain for Muslim women. They are in exactly the same position they were in before the prospect of government-regulated arbitration. Many Muslim women seeking an Islamic divorce will remain vulnerable to the machinations of bad-faith husbands, uneducated imams, and patriarchal traditions if they wish to remain a part of their religious community.
The idea of sharia arbitration brought with it the possibility of government regulation that could have ensured a measure of transparency, accountability and competence in adjudication, none of which currently exists in informal Islamic divorce procedures.
Certainly, those regulatory measures would have required careful consideration, and serious education and training would have been required to ensure that those performing arbitration respect both Ontario law and the spirit of Islamic law to create a synthetic tradition that is legitimate (from both Canadian and Islamic perspectives) and is fundamentally fair.
But, as former Ontario attorney-general Marion Boyd and others suggested, there are general, value-neutral regulations that could be implemented to create a regime of accountability that respects Ontario law and protects weaker parties in an action. Effective sharia arbitration would not have arisen overnight, due to the dearth of critical expertise in the field. With the advent of colonialism and the implementation of secular legal systems in the Muslim world since the 19th century, the economic opportunities for religious experts declined rapidly. As the need for sharia experts diminished, the best and brightest looked elsewhere.
Furthermore, with the advent of fundamentalist interpretations of Islam throughout the Muslim world, the prevailing conception of Islamic law ignores the underlying legal theories that made Islamic law a fluid system in its premodern heyday.
When imams come here to become leaders of a community, they often have no understanding of, or appreciation for, Canadian values, and little interest in adapting the historical tradition to changing contexts. But as medieval jurist Mohammed ibn Idris al-Shafii made clear, the law must change at times. When al-Shafii, considered by many the greatest legal scholar, moved in the ninth century from the Arab peninsula to Egypt, he changed many of his own rulings.
By banning religious arbitration in Ontario, a real opportunity has been lost. With the contemporary breakdown in Islamic legal education, a vacuum of authority prevails that could have been filled with fresh analysis of the tradition, in the light of critical historical and legal scholarship. A regulated regime of sharia arbitration could have opened the door for Canadian Muslims to grapple with their tradition in a way that reflects the spirit of Islamic law and the values they hold as Canadians.
Would a regulated arbitration regime be perfect? Perhaps not. But it would have been better than the informal, back-alley Islamic mediations that are in place now. What is ironic is that if the opponents of sharia had spent their time engaging the historical Islamic tradition, creating novel arbitral principles, and forming their own arbitral institutions, the result would be a victory for Muslim women and human-rights advocates across Canada and around the world.
Unfortunately, the Ontario government has chosen to bow to the political will of anti- sharia activists who reduced the discourse to Islamophobic political sloganeering. The government's decision not only denies a right already granted to religious groups that have relied on it for years, but in the case of Muslim women, the decision does nothing substantive to protect them.
Anver M. Emon is an assistant professor at the faculty of law at the University of Toronto, specializing in Islamic law.