Attempts to introduce sharia family law into Western societies run against the tide of reforms spearheaded by female activists in the Muslim world.
Many aspects of these laws are unpalatable to a society that has enforced equal rights for divorce, custody, inheritance and court testimony, and criminalized polygamy, forced marriage and under-age marriage.
Moreover, the experience with sharia in Britain and Canada is cautionary. It is estimated thousands of British Muslim men have taken advantage of a loophole in the law against bigamy to avoid official registration and seal polygamous marriages in mosque ceremonies.
Religious divorces, much more difficult for women, were issued by sharia councils in a form of mediation under the Arbitration Act of 1996. In 2007, Sheikh Faiz-ul-Aqtab Siddiqi took advantage of a clause in the act to establish the Muslim Arbitration Tribunal, which could now make judgments enforceable under British law. The tribunal also ran sharia courts. Matters such as commercial and inheritance disputes could be resolved provided both parties agreed and the procedures were fair, but criminal and family issues such as forced marriage, domestic violence or civil divorce were prohibited.
According to a report by British think tank Civitas in 2009, some rulings of sharia courts or tribunals advised illegal actions and others were incompatible with British law. Try these: polygamous marriage (two to four wives) is considered legal; there is no requirement to register a marriage according to the law of the country; a woman cannot marry without the presence (and permission) of a male guardian; a woman may not leave her home without her husband's consent; a woman may not retain custody of her child after 7 (for a boy) or 9 (for a girl); and "severe punishments for homosexuals" are recommended.
In June, a new bill tabled in the House of Lords by Baroness Cox aimed to strike out gender-discriminatory rulings in sharia courts and make it a criminal offense, with a jail term of up to five years, to falsely claim jurisdiction in family and criminal cases. Recently, the Ministry of Justice in the Coalition government abandoned an inquiry into the courts because the latter refused to co-operate. Existence of an estimated 85 official and unofficial courts in Britain has not fulfilled the ambitions of extremists. In the London boroughs of Waltham Forest, Tower Hamlets and Newham, a recent poster campaign proclaimed sharia-controlled zones and implementation of Islamic rules, including bans on alcohol, drugs, gambling, music, smoking, prostitution, homosexuality and the mixing of sexes in public.
In Canada, sharia courts operated under Ontario's Arbitration Act of 1991. After the leader of the Canadian Society of Muslims declared that a "good Muslim" was enjoined to choose religious tribunals over Canadian civil courts, Homa Arjomand, an Iranian immigrant, feared Muslim women would be coerced into an alternative legal system where they would be denied protection of the Canadian Charter of Rights. Arjomand mounted a campaign, and in 2005 the premier of Ontario banned all faith-based arbitration in the province to ensure one law for all.
In Muslim-majority countries, many female reformers have campaigned for changes to gender discriminatory laws. Iranian women "suffragettes" have held demonstrations, risking injury, arrest and imprisonment. In Afghanistan, some women activists have been assassinated. Most reformers maintain the Quran is inherently egalitarian, and discriminatory laws evolved in a patriarchal, tribal society without the input of women. They also note that laws from seventh-century Arabia may not be applicable in the 21st.
Many argue that cultural pluralism and minority rights imply acceptance of sharia. Some contend, for example, that recognition of Aboriginal customary law as part of Australian legislation entitles other cultures to similar privileges. However, this case may be seen as a form of positive discrimination not pertaining to other minorities.
Granting religious divorces is not contentious, but the introduction of hybrid laws or sharia arbitration for family or criminal matters would transgress laws subject to the will of the people and constant revision -- a far cry from concepts of divine, immutable and unchallengeable laws.
In the West, Muslim women may suffer prejudice common to many immigrant groups, but they are empowered through civil society freedoms and laws based on universal human rights standards, fervently desired by many of their sisters and male supporters in home countries.
Originally published in The Australian.
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