The controversies over decisions by the Ontario government to allow and then ban the use of Shari’a (and other religious laws) as the basis of arbitration are not over. Religious groups and their supporters continue to push for minority religious rights. In Canada, as in other parts of the world, religious sentiments are on the rise. Conservative religious leaders have become more vocal and demanding, and governments are giving in to their demands without much regard for the serious consequences for democracy and citizens’ rights.
Decisions about granting religious-based rights should not be modeled after a most-favoured nation (MFN) clause used in international trade, by which any concession given to a second party can be extended to others. What we need is actually a reverse-MFN model: Any concession denied to a religious community by the government should also be denied to others. In a truly democratic system, all religions should be free but stay separate from the state, and the laws of the land must be equally applied to all citizens. Violations of these principles will only lead to the weakening and erosion of democracy itself.
Permitting different religious interpretations and practices to extend their authority to the secular Canadian legal system jeopardizes the human rights of many Canadian citizens, particularly women. It also reinforces the notion of double-standard entitlement for some Canadians.
Those who unconditionally push for group rights do not see, or perhaps care about, the contradictions between the rights of the group and the universal rights of all citizens, and more specifically the contradictions between the rights of the group and its individual members. Support for the application of Shari’a (and other religious laws) in Canadian courts comes from an odd amalgam of different sources, ranging from conservative minority religious leaders and vote-hungry conservative politicians to cultural-relativist academics and some populist left organizations. Aside from the minority religious leaders, none of these groups seem to be aware of the complexities involved or the consequences of their position.
No Single System of Shari’a
Controversy over the use of religious laws in arbitration has been most pronounced in the case of Shari’a. This is partly because of the prevalent stereotype that considers Muslims to be a homogenous “community” with essentially different “values,” and partly because of the more complicated case of Muslim communities. Ironically, the same dominant stereotypes that work against Muslims helped a small minority of conservative Islamic leaders to get recognition for their claim of representing the whole “Muslim community,” who, they further claimed, unanimously demands the application of Shari’a. Neither the government of the time, nor the supporters of Shari’a, asked the important questions of whether there exist universally agreed-upon Islamic religious laws (Shari’a) and to what extent the Islamic leaders who push for Shari’a represent the supposed “Muslim community.” In fact, the answers to both questions are negative.
Shari’a, or the Canon Law of Islam, is a broad, abstract umbrella concept covering several sources of Islamic faith: the Koran, Hadith (the Prophet’s sayings and traditions), Ijma’ (consensus of the jurists) and, for some, Qiyas (analogy) and, for others, Aql (reason). Shari’a is not a single codified written text or set of texts that anyone could readily refer to and draw judgment from. It gradually came into existence in different parts of the vast Islamic empire over two centuries after the death of the Prophet, and its different versions, occasioned by various emerging sects and schools, came into practice in different parts of the world.
Islam is a religion with strict codes of conduct and very specific dos and don’ts covering at least five categories of acts: what is obligatory, what is forbidden, what is and isn’t recommended and what is permissible. There is also a broad and strict system of punishments and rewards for following or not following the rules of behaviour. Devout Muslims needed guidance for their day-to-day actions and needed to regulate their moral and religious practices. The scripture, as the most important reference, could not provide unambiguous responses to all these questions, and gradually the sayings and traditions attributed to the Prophet and his close companions were added to the source. The problem was that there were, of course, such a large multitude of these references that it became very difficult to identify which were true and which were fabricated. The jurists of the time attempted to authenticate these references, and although their views were based on supposedly fallible human judgments, they came to be deemed as infallible and immutable. This formed yet another source of the Shari’a.
A Religion of Many Sects
Contrary to the simplistic views in the West, ironically shared and intentionally propagated by the Muslim orthodoxy, Islam is not a monolithic religion. Heresiographers have identified over 72 sects, each considering itself as the “saved sect,” with the others as misguided. Apart from the major division between the majority Sunnis and the minority Shi’is, there are major sub-sects and divisions within each of these. An authoritative source on the Shi’a history names even more sub-sects. Moreover, like any other religion and ideology, Islam has had a contingent nature, influencing and influenced by different cultures and societies that it came to dominate.
In the Sunni world throughout the eighth and ninth centuries, the four major schools of Hanafi, Maleki, Shafei and Hanbali emerged, and after reaching some consensus, the jurists closed the “doors of ijtihad” (forbidding any more jurists’ interpretations). By contrast, in the Shi’a world, ijtihad continued by different Shi’a imams who were the direct decedents of Muhammad, and who had separated from the Sunnis on the question of succession of the Prophet. Problems of succession also led to different sects within the Shi’is, notably the Twelvers, the Zeidis, the Alavis and the Ismailies. Each of these sects and schools – as among the Sunnis – developed their own versions of Shari’a and, more specifically, produced their own Fiqh (Islamic jurisprudence).
The complicated system of Islamic laws in different schools and sects covers all aspects of life, body and soul. It is true that they all agree on the basic principles of the religion – belief in one God and his prophet, Muhammad, and in praying and fasting – which is why it is denied that there are different Shari’as. But they are different in other aspects, notably on the worldly aspects of Muslim life, like marriage and divorce, child custody, polygamy, temporary marriage and adultery. Ironically, these worldly aspects were to be covered by the Ontario Arbitration Act for Muslim citizens who belong to the different sects and schools mentioned above.
The Secular Sect
The more important and commonly neglected issue is that not everyone in the Islamic world is a Muslim, and not every Muslim-born individual is religious. Islamic countries and communities of Muslim origin, like other communities, have practicing individuals, non-practicing skeptics, secular, laic, or even atheist citizens. Among the practicing Muslims, there are radical Islamists (who constitute a very small minority) and a vast majority of peaceful and moderate adherents. This diversity is persistently ignored – and, particularly, the existence of a large number of secular and laic persons of Muslim background is completely overlooked.
In a recent conference, I suggested that there might be a 73rd sect of Islam, which is none of the above and belongs to a large number of secular people in the Muslim world. Unfortunately these secular muslims (without the capital “M,” identified on the basis of cultural origin) are not recognized either by mainstream, devout Muslims or by the average citizens and mainstream media in the West. For the devout Muslims, particularly for the zealots, the secular individuals of Muslim origin are considered murtadd (apostate) and, according to the Shari’a and Fiqh (and almost all versions are unanimous on this), they should be put to death. Once you are or are assumed to be a Muslim, you cannot divert, convert, or become doubtful.
Canada’s Diverse Muslim Communities
The faith-based diversity among Muslims should seemingly make it hard for any individual or sub-group to claim representation of the whole group. In fact, the main thrust of the opposition to the Ontario government’s decision to allow Shari’a in arbitration courts came from moderate Muslims and secular members of the communities of Islamic cultures. Moreover, apart from sectarian differences, Canadian Muslims belong to different ethnic, linguistic, national and cultural groups.
According to the latest census, 579,600 Canadians identified themselves (and their children) as Muslims. Unlike the situation in most European countries, where the majority of Muslims originate from a single national, or at least regional, origin – mostly Pakistani and Bangladeshi in England, Algerian and other north African in France, Turkish in Germany – Muslims in Canada are far more diverse: 36 per cent are from south Asian countries, 21 per cent from the Arab world, 14 per cent from west Asian nations like Iran, nine per cent from Africa, and the rest from east Asian countries like China, Korea and the Philippines – and a small number are from the United States. These diverse groups of people have very little in common and belong to very different “cultures,” and it would be wrong to consider them as a community, let alone to allow any single group to claim representation over all.
In a sense, Canadian Muslims, like other Muslim diasporas, have a triple identity: a religious identity (Muslim, Sunni, Shi’i), an ethnic-national identity (Nigerian, Pakistani, Indonesian, Iraqi, Afghan, Turk, etc.) and a new national identity (Canadian). These identities are conflictual and, depending on the conditions of the diasporas, one will tend to dominate the others. For the more socially integrated the new, Canadian identity will be stronger. The dominant stereotypes, however, single out and perhaps ironically strengthen the religious identity.
The Consequences of “Multi-Faithism”
Ignoring the vast sectarian, ethnic and cultural diversities among Muslims, taking no notice of the existence of a large and growing number of non-religious and secular members within these communities, and giving recognition to several outspoken religious leaders (as Prime Minister Paul Martin did by meeting with them) changes the nature of multiculturalism. A new trend towards faith-based multiculturalism, which might as well be called “multi-faithism,” seems to be evolving. This will only add to the growing problems of racism, and will have serious political and social consequences.
Indeed, prevailing racism and discrimination has marginalized many Muslims. The census data shows that Canadian Muslims, despite post-secondary education levels twice the national average, have an unemployment rate also twice the national figure and median incomes 37 per cent below the national average. Since September 11 parts of the Muslim community find themselves in a vicious circle wherein, the more marginalized they become, the more appealing tradition, religion and even fundamentalism become – which marginalizes them only further. And conservative religious leaders take advantage of this situation to attract new “members.”
We face a sad irony of social change. In less developed Islamic societies, progressive secular intellectuals act as agents of change, struggling for forward-looking societal transformations and fighting conservative values and practices (and face suppression by authoritarian regimes and reactionary forces). In developed countries like Canada, which host Muslim diasporas, it is the conservative religious community leaders who act as agents of change, working toward regressive transformations, eroding and “adjusting” modern values and practices (and gain support from democratic governments in the name of multiculturalism).
Toward Secular Multiculturalism
Multiculturalism, as opposed to assimilation, is no doubt the best response to social harmony and respect for group rights in an ethnically diverse society; one only needs to try to understand the root causes of the rioting and problems facing French society to see the flaws in the forced-assimilation model. In granting group rights, however, attention must be paid to the contradictions between the rights of the group and the universal rights of its individual members. Canadian multiculturalism has not been able to combat racism, and now, by gradually heading toward faith-based multiculturalism, may in fact encourage more racism and Islamophobia.
To successfully accommodate religious and national minorities, Canada needs to emphasize and implement a secular and balanced multicultural policy, which respects religious and non-religious minorities’ cultures, while assisting them in developing a sense of belonging as citizens with equal rights and more equitable life conditions and opportunities.
Canadian democracy and its social cohesion will be in danger if religious encroachments into the constitutional legal system are not confronted through a concerted response from secular, democratic voices who believe in the separation of church and state, and respect for citizens’ rights as guaranteed by the Charter and the Constitution.