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Gmane
From: Richard Fidler <rfidler <at> cyberus.ca>
Subject: Re: No sharia law in Ontario
Newsgroups: gmane.politics.marxism.marxmail
Date: Thursday 15th September 2005 16:13:25 UTC (over 11 years ago)
In reply to Marvin Gandall

Why does Richard say the campaign against Muslim faith-based arbitration 
of private family law matters had "more than a hint of anti-immigrant 
and racist prejudice", Marv asks.

I could refer Marv to the many overt statements that I saw in the media 
in recent months. But instead I’ll let the column by Sheema Khan in 
today’s Globe and Mail, which I append below, give some details and 
eloquently describe the perception of these statements from the 
standpoint of a Muslim woman and advocate within the Canadian Islamic 
community.

I was referring primarily to the context in which this campaign was 
whipped up. Let me explain.

There are about 600,000 Muslims in Canada now, about 60 percent of them 
in Ontario, the industrial heartland of the country. They live in the 
major cities, in the first place Toronto. These and other immigrants in 
Canada, which has one of the highest rates of immigration in the world, 
are changing the composition of the working class. Some are political 
refugees. Almost all could be described as economic refugees, fleeing 
countries ravaged by imperialism. We non-Muslims and non-immigrants have 
a lot to learn about them, and to learn how to listen to them, before we 
will be able to speak to them with much credibility.

In Ottawa, where Marv and I hang out, there are tens of thousands of 
Somalis who arrived during the last two decades. They are Muslims. Many 
are unemployed. All are struggling. During the 1990s their country was 
occupied by Canadian troops who brutalized the population, in one 
publicized incident torturing and killing a Somali teen-ager.

The traditional left in Canada has little or no contact with these 
people. It knows little about them, their lives, their concerns, their 
experiences. They may be "visible minorities" but they are largely 
invisible in our organizations and most of the activities we normally 
engage in. In a few areas we may cross paths with some: for example in 
the feminist movement, where a number of generally middle-class Muslim 
professional women — themselves possibly lacking much contact with that 
sub- and nascent proletariat I mention above — are able to clearly 
articulate their concerns about the reactionary misogynist 
interpretations of Islam and shari’a law. But we know very little about 
the role of Islam within the broader immigrant communities and how it is 
perceived and interpreted in their day-to-day life.

The traditional left speaks a language that is to a large degree alien 
to the cultural experience of these huddled masses. It is the language 
of the white European Enlightenment, redolent in abstract concepts such 
as "separation of church and state". We are told it does not speak to 
the experiences of those for whom Islam is not just a "framework of 
justice" as Sheema Khan describes it, but the very source of life, as 
the word "shari’a" means in Arabic.

We know — or should know — that for many people in these minority 
communities, religion is a central component of their lives and that 
religious authorities (imans, mullahs, etc.) are recognized as genuine 
leaders within the community. They play a key role not only in defining 
moral codes of conduct but in navigating the difficult interface between 
their communities and the complex network of secular institutions 
developed by the bourgeois state.

For a long time, now these authorities have been mediating and 
arbitrating family law disputes between private individuals within the 
community, involving such issues as divorce, marriage breakdown, child 
custody and access, division of family property, inheritance, etc. I
don’t 
know the extent of such activities; Marion Boyd, in her report, 
describes a sophisticated network of such tribunals but doesn’t indicate 
their scope or the size of their caseload. They operate according to 
religious and cultural standards, codes and precepts that are known and 
respected in these communities.

A proposal was brought forward by some such authoritative community 
leaders that this arbitration process be brought under the aegis of the 
province’s Arbitration Act, as other religions have been doing without 
public criticism for some time. That is, that it be structured and 
integrated somehow with the civilian secular legal system, to increase 
its authority and give the proceedings of these tribunals greater 
formality and their decisions greater enforceability.

How should the left, the "progressives", have responded? At the very 
least, I would have thought, with humility; that is, in a spirit of 
attempting to understand the rationale, the arguments pro and con, etc.

In fact, the proposal was met with basically two responses. One, which 
turned out to be the prevalent response among a host of feminist, labour 
and left organizations, was to focus on the reactionary misogynist 
features of Islam (while overlooking similar features in other 
religions, including the dominant Christianity), and to simply reject 
faith-based arbitration outright, to dismiss any possibility of 
integration of such practices within the broader society: basically, the 
approach was, "it’s our way or the highway". And to climb 
enthusiastically on board a campaign, international in scope, mounted by 
some Muslim women who had quite understandable reasons of their own to 
focus on the differences over this issue within their community.

Another option was to view the proposal as an attempt to engage with the 
institutions of the wider society, and to look for ways to incorporate 
within this arbitration process certain legal and social rights that 
have been conquered by feminists and the workers movement within the 
secular society.

The Canadian bourgeoisie, a very self-confident ruling class firmly in 
control of all the institutions of its state — the legislatures, the 
courts, the media, etc. — has developed some pretty effective mechanisms 
for encompassing differing and evolving ethnic and cultural lifestyles 
within the country’s collective psyche as they define it, and adjusting 
their institutions accordingly. A recent example was the readiness with 
which courts and parliament alike accepted gay marriage, despite the 
violent protestations of strong forces on the right — led by the 
Catholic hierarchy (not Muslims) lest we forget.

Characteristically, the initial reaction by the Ontario Liberal 
government was astute. The Boyd inquiry, conducted by a woman with 
impeccable credentials as a feminist, NDP member, former attorney 
general and one-time director of a battered women’s shelter, came up 
with an intelligent, well-reasoned report recommending a variety of ways 
in which this particular faith-based arbitration system could be 
incorporated within the existing legal structures while providing some 
formal legal rights to assist the more vulnerable parties in the 
process. As Marv notes, her proposals were supported editorially by the 
major bourgeois media: the Globe, the Toronto Star, the National Post, 
etc.

Marv dismisses Boyd’s proposed safeguards as "utopian". The Globe’s 
reactionary columnist Margaret Wente, an outspoken opponent of 
faith-based arbitration, ridiculed them as a "Rube Goldberg plan". Even 
if those safeguards were implemented, Marv says: "Poor and uneducated 
Muslim women, many of whom don’t speak the language, will continue to 
remain uninformed of their rights and unwilling, on pain of ostracism or 
worse, to exercise any right to appeal." Perhaps. But aren’t those women 
better off under a system that legally requires that they be informed of 
their rights, including their right to judicial review, than they are 
under the existing system of unregulated private arbitration?

Any legal reforms can be criticized on the ground that the poor and 
disadvantaged don’t have an equal opportunity to benefit from them. This 
applies above all to equality rights, the hobby horse of the anti-shari’a

campaign. After all, rich and poor alike are entitled to sleep under 
bridges. But what has this to do with the concrete proposals made by the 
Boyd report, which were addressed precisely to tackling the problematic 
issues of consent, etc.?

As Anver Emon, a professor in the University of Toronto faculty of law 
specializing in Islamic law, put it:

"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." (Globe and Mail, Sept. 
14)

Emon adds:

"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."

The professor’s language is that of liberalism. But surely revolutionary 
Marxists above all should be able to grasp the central issues involved 
in this dispute. How could we not be suspicious of a campaign that 
featured such things as a collective statement by prominent members of 
the Liberal, Tory and NDP parties, along with leading lefty feminists 
like Margaret Atwood, Maude Barlow and Michele Landsberg, opposing 
faith-based arbitration and lauding "separation of church and state" — 
the "cornerstone of liberal democracy", the "fertile ground upon which 
modern, rights-based democracies such as that in Canada have 
flourished", as they put it — while maintaining total silence on such 
egregious institutions in Ontario as an extensive government-funded 
kindergarten-to-grade-12 Catholic "public" school system that overtly 
teaches the oppression of women to impressionable kids. (See "Don’t 
ghettoize women’s rights", Globe and Mail, Sept. 10.)

Why this blindness? The anti-sharia campaign cannot be viewed in 
isolation from the overall political context since 9/11, in which 
Muslims have been singled out repeatedly as the enemies of 
"civilization" as we know it, in a sustained media attempt to justify 
the racist war drive. That’s why I maintain that the campaign was 
"racist".

So in the end, religion-based arbitration will continue but without 
certain procedural safeguards and rights. The ruling class emerges 
having it both ways: prepared to accommodate the legitimate demands of 
members of an oppressed minority community, but ultimately backing down 
in the face of a "democratic majority" public opinion. As a Globe and 
Mail editorial cynically exulted, the day after McGuinty’s backdown: 
"Ontario has done the wrong thing, but for the right reasons.... But at 
least this much can be said. Canadians believe passionately in common 
values, in the rights of women and in equality under the law." And the 
caravan passes on.

Meanwhile, the "left", the "progressives", most feminists and the labour 
movement, have once again slammed the door in the face of an opportunity 
to engage in a real dialogue with important ethnic communities and a 
major segment of the emerging working class in this country.

There are encouraging indications, incidentally, of some important 
debates on these issues now developing within Muslim and immigrant 
communities in Canada. For example, in the June 2004 federal election 
campaign, two prominent Muslim women running for the social-democratic 
NDP (one in Ontario, the other in British Columbia) openly debated each 
other over the party’s defence of abortion rights. While both opposed 
abortion personally, the one defended the right to abortion, explaining 
the difference between having a right and personally exercising it.

Weren’t similar considerations at issue in the controversy over sharia 
arbitration? Muslim women, like all women in Canada, have the right to 
civil marriage, divorce and family law procedures and protections. But 
they also have the right not to avail themselves of such rights in these 
matters that go to the heart of their individual existence and in some 
cases collective consciousness and self-identity. In those cases, they 
may resort to private adjudication in accordance with Islamic 
principles.

Why could white feminists and progressives not recognize these 
distinctions themselves?

By the way, Marv, in a passing comment that is not altogether clear to 
me, seems to say he thinks the Bolsheviks were right in "trying to 
‘combat religion by effectively outlawing it’". I am not sure what he
is 
referring to, but that was certainly not the Bolsheviks’ approach to 
shari’a and other religion-based law under the nationalities policy 
applied by the early Soviet government. As Jeremy Smith recounts, in 
"The Bolsheviks and the National Question, 1917-23" (Macmillan, 1999):

"... autonomy did not just aim at protecting the national minorities 
against the violation of their rights, but sought to preserve the 
national characteristics of the people. This went so far as maintaining 
traditions of a religious character, in the case of Dagestan the Muslim 
Shariat (Islamic legal system): [quoting an official statement] ‘The 
Soviet Government considers that the Sharia, as common law, is as fully 
authorised as that of any other of the peoples inhabiting Russia. If the 
Dagestan people desire to preserve their laws and customs, they should 
be preserved.’" (p. 25)

And Smith explains later on:

"Although the Muslim national communists favoured the secular vision of 
Islam developed by the Jadidists, the widespread influence of 
traditional Islam caused problems for the Bolsheviks. On the one hand, 
cultural autonomy meant leaving to the Muslims themselves the question 
of the role of Islam, on the other hand, the Bolsheviks were committed 
to campaigning against religious and clerical influences and saw the 
grip of the mosques as in part responsible for holding back the cultural 
and political development of Muslims. Although the Sovnarkom's 1918 
decree on the separation of Church and State guaranteed religious 
freedom, during the civil war there were numerous instances of mosques 
being closed or profaned and of Mullahs being shot. Sultan-Galiev 
[Soviet head of the Muslim Commissariat] argued for a cautious approach 
to Islam, however, and as the influence of the Muskom and the 
governments of the autonomous regions and republics grew, so did 
tolerance of Islamic institutions and practises. In 1921, on Chicherin's 
initiative, the Central Committee officially toned down the 
antireligious campaign among Muslims, and in October of that year even 
ordered the return of confiscated waaf land to the mosques and 
authorised the reopening of Islamic local courts. In 1922 a Shariat 
Commission was created by Muslim communists in conjunction with the 
Commissariat of Justice charged with the task of making compatible 
Koranic and Soviet law. This tolerant attitude towards Islam survived at 
least until 1928.

"Similar tolerance was shown towards Buddhism in the Far East, 
especially among the Buriat Mongols, where in 1922 4,000 pupils were 
being educated in Buddhist schools (datsans). Even non-Orthodox 
Christianity among National Minorities received more respect than did 
Russian Orthodoxy. ...

"When, in 1922, Stalin sought to centralise the political and economic 
structures of the Soviet Republics, one of his arguments was that this 
would help to guarantee the ‘real internal autonomy of the republics in 
the areas of language, culture, justice, internal affairs, agriculture, 
etc'. Although this autonomy was based on territorial units, the 
distinction with the extra-territorial cultural autonomy which had been 
so vilified by the Bolsheviks was extremely fine. The Soviet republics, 
autonomous republics and regions became responsible for the cultural 
affairs of their nationals in other regions, while those nationalities 
which did not have a specific territory were catered for on a 
Russia-wide basis by the departments and commissariats of Narkomnats. 
The real objection to the Austro-Marxists had been to their plan for 
extra-territorial elective representation on a national basis rather 
than to cultural autonomy itself. Cultural autonomy became an increasing 
reality in the Soviet republics as it fitted the Bolsheviks' aims of 
encouraging national self-awareness. In many cases this led to the 
deliberate creation of national forms in language and culture. These 
policies had a lasting impact on the national consciousness of the 
peoples of the Soviet Union." (pp. 170-71)

This tolerant attitude toward Islam was specifically designed to counter 
the effects of national oppression. Under the Leninist policy, the 
workers government worked to form a durable alliance with workers and 
peasants holding religious beliefs, in full respect for their beliefs.

What a contrast to the hostility displayed by today’s "progressives" 
toward believers among the oppressed Muslim community in Canada!

RF

[from the Globe and Mail, Thursday, September 15, 2005 Page A21]

The sharia debate deserves a proper hearing

By SHEEMA KHAN

[Dr. Sheema Khan is the chair of CAIR-CAN, an affiliate Muslim advocacy 
organization based in Ottawa.]

Sharia is an Arabic word that literally means "a path to water," the 
source of life. For Muslims, it is a comprehensive framework of justice 
based on the Koran and the example of Prophet Mohammed. Sharia's aim is 
five-fold: protection of life, faith, wealth, intellect and progeny. 
Sharia has spanned 14 centuries, numerous cultures and has given rise to 
at least five recognized schools of jurisprudence. It covers such 
disparate fields as economics, criminal justice, international relations 
and family matters. The study of sharia is so important that in the 
1990s, Harvard law school launched an Islamic legal studies program.

Yet, many Canadians have opted for a more facile description: sharia, 
bad. Globe columnist Lysiane Gagnon equated it with incest. Anti-sharia 
activist Homa Arjomand has called for the imprisonment of sharia 
advocates. And Quebec MNA Fatima Houda-Pepin -- ripping a page from what 
might be called The Protocols of the Elders of Mecca -- continues to 
warn about the international conspiracy of Islamists to compliant Quebec 
media outlets. It's the same mantra she used a decade ago, dismissing 
those of us who campaigned for the right to wear the hijab as unwitting 
pawns of those same Islamists. Great fodder for Jon Stewart and The 
Daily Show -- except no one is laughing.

Undoubtedly, sharia-phobia has skewed the debate over Ontario 
faith-based arbitration to such a frenzied level that lies were 
perpetuated as facts, paranoia as patriotism. Just as the 
neo-conservative lobby peddled the bogus threat of Iraqi WMD, our own 
neo-secularists (including several Muslims) brazenly peddled Muslim 
family law as an existential threat to Western liberal democracy. As in 
the case with Iraq, the audience was a fearful public ready to accept 
its own biases coupled with sensational media accounts.

And it worked. Like the French decision to ban "conspicuous" religious 
symbols in public schools, Ontario Premier Dalton McGuinty's decision to 
ban all faith-based arbitration was aimed primarily at Muslims. Other 
religions were included to provide a veneer of fairness. At least the 
Quebec Legislature had the candour to express its animosity toward 
sharia alone, remaining silent on all other faiths.

Not so, you protest, there are legitimate issues of debate. Yes, but 
consider the following: During the 14 years of operation of Jewish, 
Aboriginal and Ismaili arbitration tribunals, the issues of "one law for 
all Ontarians," of "parallel justice systems" and the "ghettoization of 
minority groups" were never raised by the public. Why all the hue and 
cry when Muslims wish to avail themselves of the same rights as their 
fellow Ontarians?

And for those who view this as a victory for the protection of women --  
think again. There are too many unqualified, ignorant imams making 
back-alley pronouncements on the lives of women, men and children. The 
practice will continue, without any regulation, oversight or 
accountability. Muslim women (and men) will still seek religious 
divorces and settlement of inheritance matters in accordance with their 
faith. And not just the ubiquitous downtrodden immigrant Muslim woman 
who speaks little English. Our overburdened courts will still need to 
rely on experts in Muslim family law to deal with pre-nuptial contracts. 
Nothing has really changed -- except the fact that we have missed a 
golden opportunity to shine light on abuses masquerading as faith, and 
to ensure that rulings don't contradict the Charter of Rights and 
Freedoms.

Despite the acrimony surrounding the debate, there have been a few 
silver linings. First has been the tremendous debate engendered within 
the Muslim community about the practicality (or lack thereof) of 
establishing such tribunals. Unlike rabbis and priests, there is no 
college of imams in Canada to provide accreditation. There are no 
institutes to train jurists in Muslim family law. Many Muslim women are 
ignorant about their own rights within Islam, schooled instead in 
cultural misogyny. And certain provisions -- such as inheritance shares 
between sons and daughters -- raise concerns of contradicting the 
Charter. There would have been no shame for community leaders to say: 
"While we acknowledge our right to arbitration, we admit that we are not 
ready. We need to first educate our community so its members can make 
informed choices." But even those who had doubts about Muslim tribunals 
have been stung by the shrill language of opponents and the abrupt ban 
by Mr. McGuinty.

Beneath the fear-mongering, however, lie fundamental issues that speak 
to our identity and values as Canadians. While we treasure the diversity 
of our population as a strength, an August Globe/CTV poll indicates that 
69 per cent of Canadians believe that immigrants should be encouraged to 
integrate and become part of the broader society rather than maintain 
their ethnic identity and culture. Interestingly, an August poll by the 
Pew Charitable Trust shows that 60 per cent of Canadians believe that 
Muslims want to remain distinct from the broader society. This is not a 
healthy situation, and requires tough, honest discourse -- not the 
hyperbole we have just witnessed.

The other divide has to do with the place of faith in our society. 
Neo-secularists have their sights set on religious schools, faith-based 
lending institutions and "conspicuous" religious symbols. The majority 
of Canadians, like their European counterparts, do not ascribe an 
important role to faith in God. Yet in last year's landmark case of 
Syndicat Northcrest v. Anselem, the Supreme Court of Canada stated "the 
ability to freely express one's faith and one's connection with a 
religious community are as essential to human dignity as are food or 
shelter."

Will the banning of all faith-based tribunals violate this principle? 
Consider that Orthodox Jews must abide by the Beit Din (rabbinical 
courts). We must continue to find ways to accommodate the sacred and the 
secular that respect the basic human impulse of faith.

Perhaps the McGuinty decision reflects the prevailing attitude of the 
majority. However, the way in which it was pronounced was shameful. A 
principled, detailed statement would have been far more satisfactory 
than the terse comments issued late Sunday on the fourth anniversary of 
9/11.

Yes, criticism would have still ensued. But at least the Premier would 
not have left the impression that Islamophobia can play a prominent role 
in setting public policy.

[email protected]


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