Thursday, September 08, 2005

The Debate Over Sharia Law In Canada

Sharia Law puzzles me at the best of times. To my eyes it seems to be arbitrary, and somewhat ad-hoc in nature. It seems as though the meaning of Sharia is far from unified, with specific meanings being drawn largely on the assumptions of the religious leaders involved.

There has been a debate raging in Canada for quite some time as to whether or not we should allow the Muslim community to practice Sharia law within the context of civil disputes and topics such as divorce. After reading this article in The Globe and Mail today, it occurs to me that this debate is perhaps much more important than it appears at first glance.

Proponents of Sharia argue that several religious traditions have had the right to practice their unique belief systems within the context of civil law in Canada for a long time. For example, Jewish traditions have long been granted the privilege of being legally binding agreements, and there are others as well.

The first thought that goes through my mind is this - to date, we have never had to deal with a situation where the cultural underpinnings of the "alternative" legal system are at such odds with the legal guarantees of our constitution and framework laws.

To "western eyes", Sharia appears to be fundamentally unequal in its rules between genders; it can arguably be held that the woman is relegated to a secondary role within that framework. The rights and control granted to men under some practices of Sharia are troubling when approached from a cultural context that sees men and women as peers in all aspects of life. (I'm not saying that there aren't counter balances in the system, merely that the cultural assumptions under Sharia do not reflect equality in the sense that Canadian law is designed for)

The consideration that needs to come into play affects the application of all "culture-specific" civil law. Should such law be held as "equal to" written law, or should it be subject to review under our legal system. In other words, should an agreement for a divorce be drawn up under the auspices of Sharia law (or other "law" systems) be subject to scrutiny before the courts.

For example, if the man were to walk away from his wife and remarry (as described in the article), would it be reasonable for the wife to agree to hand over all of the family assets to him? (Or should he be charged and tried for bigamy?)

It seems to me that where these pseudo-legal systems are permitted exist under the umbrella of Canadian Law, they should be subject to review or appeal before the courts. While that could result in a lot of cases before the courts, it would provide a safeguard or escape hatch for the participants who may not realize the implications of what is happening during the process. For example, during a divorce, it is easy to lose track entirely of one's personal needs and stake in the defunct marriage. A woman looking to escape a dangerous or abusive situation may agree to just about anything simply to "start over". A year or so later, she may start to realize that the other parties involved actually acted in a manner contrary to her best interests. In such a situation, the "cultural law" agreement should be subject to appeal before the courts.

The assumptions that permeate our laws derive from the Judeo-Christian, and Western European traditions. When we encounter cultural norms that are dramatically different, such as Islam, or many of the Asian cultures, we need a legal system in place that provides relief for situations where those traditions may actually conflict with our laws, and the parties have "agreed" to something under pressure.

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