Shariah law: FAQs
CBC News Online | May 26, 2005
What is Shariah?
The word Shariah means “the path to a watering hole.” It denotes an Islamic way of life – not just a system of criminal justice.
It is a code of living that most Muslims adopt as part of their faith. Some countries formally institute it as the law of the land, enforced by the courts.
However, the way Shariah law is applied from country to country can vary widely.
How did it originate?
According to Muslim scholars, the Prophet Muhammad laid down the laws. Some of the laws are said to be direct commands stated in the Qur’an. Other laws were based on rulings Muhammad is said to have given to cases that occurred during his lifetime. These secondary laws are based on what’s called the Sunnah – the Prophet’s words, example and way of life.
One of the major concerns of people critical of Shariah law is that it is subject to interpretation and evolution. There is virtually no formal certification process to designate someone as being qualified to interpret Islamic law.
As it stands today, almost anyone can make rulings as long as they have the appearance of piety and a group of followers.
Why have Shariah law in Canada?
Many Muslims believe that because Canada is a secular country, its secular legal system makes it difficult for them to govern themselves by the personal laws of their own religion. For instance, Canada’s marriage and divorce laws differ from Muslim law.
It can be important for a Muslim to be granted a divorce under Muslim law, especially if he or she intends to move to a Muslim country in the future and remarry.
Another concern for some is that if a Muslim dies without a will in Ontario, the estate would be divided according to Ontario law as opposed to Muslim law.
How did Shariah come to be considered in Canadian jurisdictions?
In 1991, Ontario was looking for ways to ease the burdens of a backlogged court system. So the province changed its Arbitration Act to allow “faith-based arbitration” – a system where Muslims, Jews, Catholics and members of other faiths could use the guiding principles of their religions to settle family disputes such as divorce, custody and inheritances outside the court system.
It’s voluntary – both parties (a husband and wife) have to agree to go through the process. But once they do, the decisions rendered by the tribunal are binding.
The Ontario government has been reviewing its Arbitration Act and on Dec. 20, 2004, it released a report conducted by former attorney general Marion Boyd. Among her 46 recommendations was that:
- The Arbitration Act should continue to allow disputes to be arbitrated using religious law, if the safeguards currently prescribed and recommended by this review are observed.
Earlier in the year, the Islamic Institute of Civil Justice said it wanted to set up its own faith-based arbitration panels under the Arbitration Act, based on Shariah law.
The proposal ran into opposition from women’s groups, legal organizations and the Muslim Canadian Congress, which all warned that the 1,400-year-old Shariah law does not view women as equal to men.
In her report, Boyd noted that some “participants in the Review fear that the use of arbitration is the beginning of a process whose end goal is a separate political identity for Muslims in Canada, that has not been the experience of other groups who use arbitration.”
In May 2005, the Quebec National Assembly unanimously supported a motion to block the use of Shariah law in Quebec courts.
What are the concerns about establishing Shariah law in a Canadian jurisdiction?
The National Association of Women and the Law, the Canadian Council of Muslim Women, and the National Organization of Immigrant and Visible Minority Women of Canada argued that under Shariah law, men and women are not treated equally.
They argued that women fare far worse in divorce, child custody and inheritance matters under Shariah law. For instance, a woman can only inherit half as much as a man can. If a divorced woman remarries, custody of the children from her previous marriage may revert to the children’s father.
How would Shariah law apply in Ontario?
First, it’s not clear the term “Shariah law” would even be used. Several groups that appeared before Boyd’s process of reviewing the Arbitration Act say it’s not Shariah law they want to set up but a Muslim Personal/Family Law process which has its roots in Shariah.
The arbitration process as set out in the Arbitration Act is voluntary. Most of the concerns about the creation of “Shariah” tribunals have focused on the fear that Muslim women may feel they are being forced into taking part in a process of binding arbitration according to Muslim family law instead of resolving their disputes through the court system.
In her report, former Ontario attorney general Marion Boyd stressed that any faith-based system would have to conform to the Charter of Rights and Freedoms.