Canadian Group Sides With Muslims on Law

By Sheldon Gordon

Published January 14, 2005, issue of January 14, 2005.

TORONTO — In a move that is angering Jewish feminists, B’nai Brith Canada is supporting the demands of conservative Muslims in the province of Ontario who wish to have the right to use private arbitration based on Islamic law for the resolution of their marital, custody and inheritance disputes.

A report prepared for the Ontario Ministry of the Attorney General recommended last month that family arbitration based on Islamic law be permitted, but regulated, under the province’s Arbitration Act.

But both Muslim women’s groups and Jewish feminists are opposed, fearing that vulnerable female immigrants will be coerced into submitting to Islamic arbitration.

“B’nai Brith is supporting the more conservative elements in the Muslim community, and that’s not good for women,” said Ester Reiter, a secular Jewish feminist and a professor of women’s studies at Toronto’s York University. “I’m not sure what a smart idea that was. Tradition should not be used as an excuse for limiting gender equality.”

The decision of B’nai Brith Canada also is likely to surprise some observers, who have noted its tendency to oppose Muslim groups on foreign policy issues.

If the proposal is adopted, it would be the first recognition of Islamic law, or Sharia, in any Western society. Sharia is a centuries-old system of justice based on the Koran. While it includes general invocations of justice and equality, it has been used in some Muslim nations to justify stoning of adulteresses, flogging of rape victims and various types of mutilation.

While Ontario Muslims favoring Sharia are not seeking its application in criminal matters, they want it approved for arbitration of family and civil matters. Even this is controversial. Under Sharia, male heirs receive almost double the inheritance of females. Alimony is limited to a period ranging from three months to one year, unless a woman was pregnant before she was divorced. Only men can initiate divorce proceedings, and fathers virtually always are awarded custody of any children who have reached puberty.

The government report noted that religious-based arbitration can only bind parties who voluntarily submit their dispute to the process, and even then the arbitrator cannot impose settlements that are contrary to the gender equality guarantees contained in the Canadian Charter of Rights. Also, the federal Divorce Act would continue to require that “the best interests of the child” be the criterion in custody decisions.

B’nai Brith Canada and pro-Sharia Muslims contended in submissions to the government inquiry that rabbinical courts, called beit din, have functioned successfully as arbitration forums in Canada for generations, and that Islamic courts must be given the same rights under Canadian constitutional guarantees of equality and freedom of religion.

John Syrtash, a divorce lawyer who wrote the B’nai Brith brief, said it was “not defending Sharia law, but rather trying to defend the integrity of the Torah. If you’re religious, then Jewish courts come down to us as the word of God. Some people seem to think the only way to defend vulnerable women is to attack religion. That’s shocking.”

B’nai Brith apparently was concerned that some feminist women’s groups were advocating a ban on all religious-based arbitration — including beit din — in order to sidetrack Sharia without discriminating against the Muslim community. “They didn’t want the beit din baby thrown out with the Sharia bath water,” said one observer.

Rabbi Debra Landsberg of Temple Emanu-El, a Reform synagogue in Toronto, said that she hoped the government would modify the Arbitration Act to allow all the religious communities to make use of it, but with greater government oversight. “I don’t think the beit din would be threatened by there being a greater relationship between independent arbitration and the state,” she said.

B’nai Brith did propose adding safeguards to the Arbitration Act to prevent inequities to vulnerable women. It advocated that parties opting for a religious-based arbitration be required to file a certificate showing that they had first obtained independent legal advice. Under the B’nai Brith proposal, those without the means to hire a lawyer would be eligible for legal aid.

The government report, however, did not reflect the B’nai Brith proposals fully. It would allow women to waive their right to independent legal advice — something critics feel often may be done under spousal coercion. The report also did not recommend that those unable to afford a lawyer be eligible for legal aid.

Both champions and opponents of religious-based arbitration frequently have cited the beit din experience in the debate. Rabbinic courts, until recently, often were criticized for a bias toward men in divorces. Husbands leaving their wives often refused to give them a Jewish divorce decree, consigning them to a marital limbo as “chained women.” But federal legislation passed in 1990 provided a countervailing force: It withholds a civil divorce until a religious divorce has been granted.

“Since the legislation came into force, the number of problems has dropped by 90%,” Syrtash said. “In rare cases where someone claims to be coerced, the rabbis bring pressure [on the spouse].”

However, Tirzah Meacham, an Orthodox Jewish feminist and professor of Near and Middle Eastern civilizations at the University of Toronto, noted that to the extent that Canadian women now are treated better under Jewish law, it’s because of the civil law change rather than any reform of the beit din. “It’s still a defective system,” she said.

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