Women Rights & Muslim Family Law

Women Rights & Muslim Family Law Canadian Council of Muslim Women February 16, 2010 Presented by Fauzya Talib, CCMW Board Member to the Council of Women, Ottawa

Outline • Muslim Laws and Women’s Rights • Religious Arbitration • Family Law Act • Muslim Family Law • Muslim Laws in Canada

Muslim Laws and Women’s Rights • Muslims are guided by the Quran and the Hadith • Quran considers women as spiritually equal to men even taking care to specifically include women in passages dealing with spiritual duties and rewards. E.g. Chapter 33, Verse 35: “God has prepared great forgiveness and reward for both men and women who surrender to Him, for both men and women who believe, for both men and women who obey…”; also highlighted in the Quran are good and kind relations between husband and wife. (Primer, p. 4) • Hadith (sayings or anecdotes of the Prophet), are a kind of secondary scripture. Hadith maintains respect for women’s spirituality and for male-female relations. E.g. men are promised a special reward for bringing up daughters, and men are urged to properly maintain their family. • What is sharia? • The commandments or laws of God are known as sharia, the ideal “path” of life intended by God.Around the world, Muslims are not of one opinion about the laws of Sharia. • What about Muslim law? • Disagreement among Muslims concerning the correct approach to the law and the position of women within it. • There’s no one codified “Muslim law.” • Muslim law is a large body of work built up by many dedicated scholars through the centuries. • There are various schools of thought, and each has its own interpretations and rules. Even scholars within the same school may disagree on the exact details of the law.

Muslim Laws and Women’s Rights • Main schools of Muslim jurisprudence • Four Sunnite schools of jurisprudence - Hanafite, Malikite, Shafiite and Hanbalite - and one main Shiite school, the Jafari. • Each has its own interpretations and rules, and there is a variety of legal opinions among the different schools. • At times, scholars even within the same school disagree on the exact details of the law. • Religious and legal authority • Legal authority in Islam does not belong to any one person or organization. • The believers themselves choose the persons they think to be the most knowledgeable and pious to give them advice about the law. • According to the Sunnites, this is counsel only, which can be rejected by a sincere conscience and mind. • Literally meaning “selection,” takhayyur as a legal concept perhaps best translated as “eclecticism.” It recognizes that individual Muslims may follow the legal interpretation of any school of law or, indeed, of any individual scholars within those schools. • Under the principle of takhayyur, Muslims are not bound to the schools of law they were born into or that predominate in the regions where they live.

Muslim Laws and Women’s Rights • Reformists vs traditionalists • Reformists believe that Muslim laws regarding social intercourse are meant to be constantly reinterpreted according to time and place so that they continue to reflect basic values in different kinds of societies. • Reformists point out that the term used for law is fiqh, or “understanding,” indicating that it is a product of the human mind and therefore fallible. This fallible human understanding of God’s law, according to the reformists, is meant to be constantly questioned and revised. • Traditionalists regard the rules of the traditional laws as fixed. They are likely to equate their understanding of law with sharia, the ideal path of life intended by God. In the view of traditionalists, the laws are a timeless reflection of an ideal and divinely ordained pattern of social relations.

Religious Arbitration - Background • Oct 2003 – debate arose around a clause in the Arbitration Act, stating that other laws, notably religious laws may be applied in arbitration settlements; this opened debate on the application of religious laws in family matters in Ontario • Issue: instead of being restricted to the resolution of commercial disputes, the door was opened for any laws from any country or any religion and for any purpose. • Public outcry from Canadian and international faith-based organizations, feminists groups, community groups, researchers and media • Premier of Ontario, Dalton McGuinty appointed Ms. Marion Boyd (former Attorney General under the provincial NDP government) to review the Arbitration Act and the impact arbitration may have on people who may be vulnerable, including women, persons with disabilities and the elderly • Also tasked with reviewing religious-based arbitration • Ms. Boyd met with numerous groups who were either proponents or opponents of the issue before submitting a report of her findings in 2004

Religious Arbitration - Proponents • Among the proponents of the use of religious based arbitration were some Muslim organizations, primarily the Islamic Institute for Civil Justice who proposed the use of Sharia/Muslim Family law in Ontario. • What this meant was the Act would permit private, legally binding arbitration to settle issues that affected the personal status of people such as wills, inheritance, marriage, remarriage, marriage contracts, divorce, maintenance, custody and maintenance of children, and guardianship. • Proponents argued that religious-based arbitration was enshrined under the Canadian Charter - right to practice one’s religion; that this was a form of accommodating the needs of religious minorities within a multicultural society; private arbitration would relieve the backlog of courts; private arbitration was a matter of choice; informal mediation was already taking place and it would be better to have these recognized and legitimized by the Arbitration Act; that confidentiality was emphasized especially for women who do not want their problems made public.

Religious Arbitration - Opponents • Opponents to Religious-based Arbitration argued that over the past 30 years there had been progress in separating the Judeo-Christian values from the Family Law regime, to basing these laws on human rights principles; that use of private arbitration would privatize family law by creating a parallel system of law, allowing the religious, cultural and political elites to decide on the applicable law, with the option to circumvent Canadian family law. The Family Law Act has values stated in its Preamble, while the Arbitration Act has no underlying principles about the family. • Canadian Council of Muslim Women along with several other women’s organizations stated that family issues should be a matter of public law; that any implementation of religious laws would be harmful for many women and children especially considering the prevalent conservative interpretation of Muslim Family Law as applied to women; that Religious laws were based on a patriarchal model of the family and not on equal partnership of the family.

Religious Arbitration – CCMW Concerns Several concerns, among them were: • As a newer immigrants, Muslims are searching for markers to identify themselves as a faith group and the use of Sharia/Muslim Family Law was being used as one such marker. Concerns this raised were: • Some Muslim women may be persuaded to use the Muslim family law option out of deference to their religious beliefs, rather than seeking protection under the law of the land; • that several new sets of laws might be applied to Muslims demarcating what it is to be Muslim. Problematic as Muslim law is not monolithic, nor simple, nor applied consistently across the world. • Religion would be used as a "coercive" force instead of a enhancement to our lives. • Privately arbitrated decisions were legally binding, and while the right of appeal existed, it was almost impossible to exercise it without incurring tremendous personal and financial hardship. • Optional use was being eroded by some who were saying that not following Sharia/Muslim Family Law was “tantamount to heresy-apostasy.” • Using the extreme, and inaccurate argument that this is the right of religious freedom makes other Canadians and politicians wary of any analysis and resolution of the issue • Using “Multiculturalism” is a false argument as it misuses the policy which was never meant to take away the equality rights of a group such as those of Muslim women. • Instead of addressing the issues resulting from inefficiencies and ineffectiveness of the federal/provincial court system the government was allowing the growth of privatization of the legal system and the lowering of some of the safeguards. The necessary improvements to the courts had to be challenged by the concerted efforts of all Canadians without reference to anyone’s religious or cultural beliefs.

Religious Arbitration vs Canadian Law CCMW maintained that Canada’s Laws provided Women’s Equality Rights: • In Canada, the Canadian Charter of Rights and Freedoms specifically addresses equality rights. • Canada is also a signatory of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and of the International Convention on Civil and Political Rights (ICCPR). Both these documents provide equality-rights protection for women which take precedence over the right to religious freedom. Case Law: • Case law, or court decisions, further addresses the issues of women’s rights. Public court decisions are required to conform with the CanadianCharterofRightsandFreedoms. • Court decisions are a matter of public record and can be appealed to a higher court.

Religious Arbitration – Rallying Our Efforts • CCMW with the help of many others groups created a coalition and though there were many differences amongst us, all pulled together for the same principles. The coalition was very powerful in mobilizing the various communities and in influencing the politicians. Prominent Canadians agreed to a joint letter which was published in the Globe and Mail on Saturday Sept 10/06 and we understand this letter had an impact on the Premier. • There were many politicians, at both the federal and provincial level who became allies. We also received huge support from international partners such as Women Living Under Muslims Laws and are most grateful to Rights and Democracy for bringing these lawyers, scholars and activists to Canada. • The YWCA website has the Joint Declaration signed by organizations and individuals. The Steering Committee of the coalition led much of the work. • CCMW maintains deep gratitude to many, including the Council of Women for their collaboration on this issue which affected all women.

Religious Arbitration - Outcome • Boyd Report made public in December 2004; included 46 recommendations, not requirements, but even these do not protect or safeguard any rights. • The Ontario Institute of Dispute Resolution, Ontario Association for Family Mediation and the Family Mediation Canada, wrote to the Premier that Boyd’s recommendations would not protect vulnerable people. • In Sept 2005, the Premier of Ontario publically announced there would be no religious laws used in arbitration and that “one law will be applied to all citizens and that is Ontario and Canadian law.” • Ontario introduced Bill 27 (Fall 2005) which received royal assent in March 06. Law amends a number of other legislations and the changes include: • Family arbitration agreement has to be in writing. • Each party must receive independent legal advice before entering an agreement. • The right to appeal cannot be waived. • No one can be committed in advance to arbitration. • The agreement has to consider the best interests of the children. • There is to be regulation for family law arbitrators and they must undergo training. • Arbitrators must keep records and submit reports to the Attorney General. • Funds are to be provided for public education and outreach.

Arbitration Act for Family Matters Issues and Concerns: 1.Once the process of arbitration starts, the person cannot withdraw from the process. 2. The arbitrator can be anyone, and does not require any training, legal or otherwise. 3. The arbitration agreement [award] is legally binding and can only be overturned via a court challenge. 4.Past experiences have demonstrated that the courts tend to defer to the arbitrator’s decision and rarely have any cases been overturned. 5. The costs - financial, time and emotional - of a court challenge are enormous and few can proceed to this step. 6. The problematic section which stated that other laws could be applied was specifically related to a commercial dispute between Ontario and an American State. 7. Till now, no other province allowed its Arbitration Act to be used in family matters, for example, Quebec states that families are of great value to society and therefore cannot be subject to private legal agreements. 8. NDP which revised the Act in 1991, has made a public statement that the Arbitration Act should not be used in family matters. The Conservativesagree with the Premier’s decision of No Religious Arbitration in family matters. 9.The main objection is that the nature of the private agreement, outside the civil court system, does not lend itself to having the government intrude in such agreements. 10.Another concern is that a parallel system of law is introduced in family matters which deflects from the civil court system which has public scrutiny.

Family Law Act 1. In the last 30 years, this law has undergone major changes, from having elements of Judeo-Christian values, to a law reflecting a human rights paradigm, with values of equality and shared responsibility of both parents. 2. It is specific for the family with a preamble of values. 3. The Act is open to public scrutiny and can be revised via a democratic process. 4. It is flexible and can accommodate individual preferences. 5. CCMW and other organizations are asking that the government review the Act as it is about 15 years old and all legislation should have a review process. There are some issues which have arisen in the last few years and it is important for a review.

Muslim Laws in Canada • Canadian Muslim communities are relatively new and diverse. • Fragmentation into many groups with different backgrounds and practices precludes the development of a generally recognized set of laws to which everyone can refer. • Fluid situation in which a very wide range of views about Islam and its laws is being articulated and debated. • Relying on Muslim laws may be more perilous in Canada than in most Muslim countries. • In Muslim countries, there are defined laws laid down by governments, and it is therefore possible to have a good idea of what rules will be applied to a particular case. In Canada, however, one may be faced with unfamiliar standards and rules. • If Muslim laws are to be used, important to know about the kind of law to be applied - reformed law or the traditional law of one school or another.

Muslim Laws in Canada – Education and Awareness With this in mind, CCMW has continued efforts to strength education and to build awareness among Muslims, non-Muslims, Community Leaders, Service Providers and others: • Research and Publications on Muslim and Canadian Family Law: • Muslim & Canadian Family Laws: A Comparative Primer (Oct 2006) • A Series of Six Booklets: Domestic Contracts, Marriage, Divorce, Custody and Child Support, Family Property and Spousal Support, and, Inheritance • Information Sessions for Social Service Providers, the Legal Community and the general population on Muslim and Canadian Family Laws as they pertain to the same subjects mentioned. • Family Law Education for Women (FLEW) on-line in 11 different languages, Plain language legal information on women’s rights under Ontario family law re: Alternative Dispute Resolution and Family Law; Child Protection and Family Law; Child Support; Criminal and Family Law; Child Custody and Access; Domestic Contracts ; Family Law Arbitration ; Family Law Issues for Immigrant, Refugee and Non-Status Women ; Finding Help with your Family Law Problem ; How Property is Divided in Family Law ; Marriage and Divorce ; Spousal Support ; hardcopies could also be ordered. • Marriage Contract – orientation and training to Muslim community in Spring. • CCMW Website: www.ccmw.com

Conclusion What questions do you have? Thank-you! Contact: CCMW: info@ccmw.com Fauzya Talib: fauzyat@rogers.com

Women Rights & Muslim Family Law