By Paul Weinberg
TORONTO, Sep 13 2004 (IPS)

Muslim women who fled the strict Islamic laws in their home countries to live in a more liberal environment in Canada may now face a similar regime in the largest province, Ontario, where a Muslim civil court for family disputes is being considered under the arbitration act.

"Someone like me who was forced to leave her home country, exactly because of the re-Islamicisation in our country," said Haideh Moghissi, a sociologist at York University who came to Canada from Iran 20 years ago.

Moghissi has been interviewing migrant Muslim women in Canada for an academic project involving diaspora, Islam and gender, and says she discovered "a lot of resentment" towards the proposed Islam-based (Sharia) court.

"They have been brought to this country through the sponsorship of their husbands. They are dependent on (them) for various reasons and they simply don’t have a say that the men have in cases like this. They can be pressured into arbitration," she told IPS.

In theory, the Canadian Islamic civil process will be entirely voluntary and parties in family legal disputes have the option of using the Canadian courts instead.

But Alia Hogben, the executive director of the Canadian Council of Muslim Women, disputes the notion that the woman’s participation will be voluntary. "It is very hard for a woman to go against her family, her community and mosque," she noted.

Moghissi says that women living in countries where Islamic Sharia law is applied do not receive equal treatment in such areas as divorce, child custody, spousal assistance and wills.

She cites the fact that under Sharia, men routinely receive twice what is given to women in an inheritance. Islamic law also makes it harder for women to divorce their husbands, obtain long-term custody of children (they are deemed the property of the father in Islam) or receive spousal support payments beyond a limited period of time.

"There are many reports of Muslim men, men from the Middle East who just kidnap children, whose custody is with the wife. They basically leave (Canada). It is a serious issue. In the last three years we have had many cases," said Moghissi.

It remains to be seen which version of Sharia will be adopted by the Canadian Islamic civil court, with the decision potentially affecting a 700,000-strong Canadian Muslim community split along cultural, national and ethnic lines.

Dr. Mohamed Elmasry, president of the Canadian Islamic Congress, counters that an Islamic civil court would have to abide by Canadian and Ontario law and the Canadian Charter of Rights and thus will not be a replica of systems in more repressive countries..

Elmasry, who has done his own share of Sharia-based mediation and arbitration, describes it as a "healing process" for a married couple experiencing a break-up. He says that a formalised Islamic civil court would have the resources to develop a trained group of arbitrators and mediators.

"People usually go to their local imam (if there is a family dispute). There is no way to audit these cases, if they are successful or not. And there is no proper training for these people," he said.

Meanwhile, another proponent of the new Islamic civil court concedes that Canadian Muslim women would probably benefit in some cases, such as inheritance, if they took their family disputes to the more gender-neutral Canadian courts, which are covered by the Canadian Charter of Rights.

But "many people choose to (go through an Islamic civil process) as a tenet of faith or a tenet of principle. They feel that even though they would be getting less in this instance, they still feel more comfortable in resolving their inheritance by Islamic principles," said Riad Saloojee, a spokesperson for the Council on American Islamic Relations Canada (CAIR-CAN).

Saloojee predicts that many Canadian Muslims will turn to the Islamic court because it is quick, inexpensive and confidential, unlike the Canadian courts. "That’s a draw for many people."

CAIR-CAN, in contrast to other advocates of the Islamic civil court, avoids the usage of the term "Sharia". Salougee explains that technically Sharia is too broad a term in Islam for a process that covers just family law.

But Elmasry does not shy away from talking about a Sharia-based court in Ontario that should all cover internal civil disputes among Canadian Muslims, including tenant-landlord relations and the dismissal of an imam from a mosque.

The Ontario arbitration legislation of 1991 was originally designed to handle commercial and labour disputes and thereby lessen the load of cases in the provincial courts. However, after religious Jews began using the process to arbitrate internal disputes under the Judaic Halacha process, the leaders of the Canadian Muslim community decided to establish a similar system.

Tarek Fatah, a spokesperson and co-founder of the secular Muslim Canadian Congress, is concerned that Canada’s liberal multicultural tradition will in the end accommodate an Islamic civil court without appreciating the consequences of such an action.

"I think the crux of the matter is that (the Canadian Muslim leadership) is scared of the rights of women in this society. They are threatened by it and then they are also threatened by the loss of their control over the community," Fatah said in an interview with IPS.

Meanwhile, Moghissi says a Canadian Islamic civil court will be the first of its kind in North America and Europe. "Once it is implemented in one place, then it makes it easier for migrant communities or conservative elements within migrant communities to demand the same rights, based on example," she warned.

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