The Question of Muslim Women’s Rights and the Ontario Shari’ah Tribunals: Examining Liberal Claims

Introduction

Much western discourse on Islam has figured the “Muslim woman” as a victim of her patriarchal religion, views that gained increased currency in the post-9/11 period. ¹ In the context of the War on Terror, for example, saving Afghan women from the “oppression” of Islam became a discourse that reinforced the idea that Muslim women require emancipation into the liberal social customs of the West. A similar perception of the “Muslim woman” emerged in late 2003, when the Ontario-based Islamic Institute of Civil Justice (IICJ) made the announcement that, under the Ontario Arbitration Act, S.O. 1991, Muslims could resolve their family disputes through faith-based arbitration. ² This announcement quickly garnered international attention, and certain women’s rights organizations launched a global campaign to ban this kind of faith-based arbitration. Such private resolutions had been previously permitted under the Arbitration Act, and family matters had for several decades been arbitrated based on religious teachings in Jewish, Muslim, and Christian settings even before the passing of the act in 1992. ³ Despite this long-standing practice, because of the increasing pressure from women’s rights organizations, the government of Ontario decided to call for a full review of the Arbitration Act. The premier formally asked for the advice of the attorney general, Michael Bryant, and the minister responsible for women’s issues, Sandra Pupatello. In June 2004 Pupatello appointed Marion Boyd, a former New Democratic Party attorney general, to look into the concerns that different organizations had raised with regards to the Ontario Arbitration Act. ⁴ This review and the global campaign contributed to the February 2006 government decision to amend the act. According to its amendment, if family arbitrations were not conducted exclusively in accordance with the law of Ontario or another Canadian jurisdiction, the decision would have no legal effect. ⁵

The legal and public discussions about the act raised significant questions pertaining to Islam and gender discourse. A major focus of the campaign to ban faith-based arbitration was the idea that Islamic laws, as interpreted and understood in the global North, did not embody gender equality; hence Muslims ought to employ Canadian civil laws when resolving family disputes to assure (and secure) women’s rights. The opponents of the Ontario Shari’ah tribunals considered Canadian civil laws the best mode to safeguard the rights of women, because, they argued, these laws were founded on liberal-secular ideals and not religious principles. This logic suggested that liberal-secular regimes are inherently “progressive” and religious establishments are intrinsically “repressive” for women. Further, Muslim women were deemed to have only two options: either resolve family disputes through liberal-secular laws and consequently enjoy the promise of gender equality or accept inequitable religious resolution. On an epistemic register these articulations were rooted in a sharply binary mode of thought, as they invoked a religious/secular dichotomy that historically shaped western social traditions and institutions. On an empirical register such a formation made possible a series of benevolent interventions, including convincing subjects, to save Muslim women from their patriarchal religion.

In this article I unpack the epistemic and pragmatic composition of the notion of “saving” Muslim women in the debates about the Ontario Shari’ah tribunals. I argue that on both registers the idea of “saving” Muslim women was coupled with major axes of power and colluded with processes of colonization and imperialism. Colonial and imperial representations of Muslim women were primarily secured by employing the notions of rights, freedom, and equality. I call these notions “liberal sensibilities” because in their formation they were embedded in liberal thought. Further, since such tropes enabled the opponents of the Ontario Shari’ah tribunals (henceforth referred to as “opponents” or “critics”) to assert the supremacy of liberal sensibilities and sustained an image of a victimized Muslim woman, I identify them as agents of a “liberal violence.” I argue that while both Muslim and non-Muslim interlocutors ended up privileging a liberal order to protect Muslim women’s rights, such a conclusion ignored (indeed foreclosed consideration of...