Parity and Sharia Councils: The Question of Gender Equality

The ‘Parity Democracy Model’ is an important strategic intervention in promoting equality. While recognizing the limitations of the for­mal substantive sex-equality framework it seeks to enable women to participate equally in all domains of citizenship.

ShaTiacowicilsaftdMuslimFamify سأ !A3 differentially shaped by articulating relations of power; and how un­der a given set of circumstances we ourselves are “situated” in these power relations vis-⅛-vis other categories of women and men’.³⁶ The challenge of universalism is addressed by creating spaces of ‘strategic essentialism’³⁷ framed from the vantage point of a dominated subject position. Models, which therefore aspire to ‘parity’, are important in relation to debates on rights, democracy and law. As Rubio-Marin states,

it seems unlikely that one could press for a gender parity democ­racy model in the United States without integrating some con­ception of racial parity democracy. This makes the project more daunting and less viable both theoretically and politically because the forces of racism and patriarchy would presumably join in opposing it.³⁸

Intersectional analyses, however, raise important challenges while interrogating power relations and the defining of racial and sexual categories as oppositional and in conflict.

The question of choice, consent, agency, capabilities and autonomy has long remained both an important and a vexed question for femi­nist scholars from multiple traditions including Western and postco­lonial feminist paradigms. The debates are underpinned by important questions of moral self and viable choices all taking place relationally under the various contexts of identity and belonging. Feminist schol­arship informs us that agency cannot be exercised without choice and the relationship between choice and agency is a complex one. This relationship between agency and choice becomes even more compli­cated within wider debates of identity, belonging and citizenship for women living within minority Muslim communities. For many fem­inists, autonomy and choice remain difficult and elusive concepts to define each overlapping but also pointing to points of departure and how individual meanings and interpretations challenge the very foun­dations upon which they may be understood. Furthermore the acqui­esce of choice is an important aspect of understanding how choice may operate.³⁹

For many scholars, the question of personal autonomy and choice underpins debates on the recognition of religious councils and tri­bunals in Britain. The debates fall largely within two spectrums of scholarly work. The first can be described broadly as orientalist dis­courses which accord Muslim women little if any agency and per­sonal choice as members of Muslim families and communities and the

second points to the fact that all debates on equality and free choice are circumscribed by ‘difference’ along multiple and complex factors including context, place and time with notions of belonging, identity and being. The extent to which free choice is therefore expressed can simply be one based on personal and strategic decision-making in the face of conflicting and competing demands.

Thus the language of choice, commitment and faith as described by the religious scholars fits in neatly with the discourse of belonging to a wider Muslim community (Umma) and the importance attached to the development and formation of a local Muslim community­identity.

In my earlier research with the exception of one interviewee, all the women had contacted a Sharia Council voluntarily, notwith­standing guidance they may have received from family, friends and/ or the local imam. In most cases, initial contact had been made via the telephone, and this was followed up with an application form cit­ing the reasons for seeking a religious dissolution of marriage. The most obvious questions concern the autonomy and independence of the women during this process of dispute resolution and their expe­rience of mediation and reconciliation. Although not all women are marginalized and denied equal bargaining power during official me­diation processes, there exists evidence to suggest that there is deep anxiety among many women at the prospect of initiating both official and unofficial mediation, an anxiety that persists throughout the pro­cess. Feminist scholars have warned of the dangers of trying to resolve marital disputes outside the protection of formal law.

ShaaCo cilsandMitsIimFail.^ 115 سأ authority or where the mediator is not neutral and yet still provides the normative framework for discussion of a situation which can transform the nature of the discussion and curtail the autonomy of the disputant. Roberts (2008) raises concerns that negotiations might well occur in private ‘without the presence of partisan lawyers and without access to appeal’.⁴⁰ Some studies point to the fact that official mediation places women in a weak bargaining position, and encour­ages them to accept a settlement considerably inferior to one that they might have obtained had they gone through the adversarial process. Mediation can therefore promote a particular familial ideology that is based upon social control and patriarchal norms and values, and operates through subliminal, covert forms of power and coercion. In contrast, formal law provides protection against abuse in the private sphere, and so in response to the move towards private legal ordering, critics argue that mediation fails to deliver on the key issue of ‘justice’. This can be described as a development of social and legal norms as one which

exists within society a network of social norms which is formally independent of the legal system, but which is in constant interac­tion with it. Formal law sometimes seeks to strengthen the social norms. Sometimes it allows them to serve its purposes without the necessity of direct intervention; sometimes it tries to weaken or destroy them and sometimes it withdraws from enforcement, not in an attempt to subvert them, but because countervailing values make conflicts better resolved outside the legal arena.⁴¹

Feminists have extensively critiqued this tenuous relationship between family and state intervention across a wide spectrum of disciplines. Yet it is precisely the fact that women have such divergent experi­ences of family mediation that renders problematic any proposals to develop family mediation as a more formalized process to suit the specific needs of minority ethnic communities.

cultural autonomy. Maclean rightly asks: ‘What are the implications for family justice of this move towards private ordering? Is this form of “privatization” safe?’⁴² Undoubtedly, in this context formal law provides protection against abuse in the ‘private’ sphere - the sphere in which this legal ordering operates. Maclean goes on to ask:

is it dangerous to remove disputes from the legal system with the advantage of due process, plus protection of those at the wrong end of the far from level playing field, and visible negotiation and settlement which takes place not in court than in the shadow of the law?⁴³

The debates in Ontario, Canada, have also formed the backdrop to understanding this relationship between civil and religious law. In Ontario, the extent to which family disputes should be allowed to take part under the Ontario Arbitration Act was brought into sharp relief when the Canadian Society of Muslims sought to establish a Sharia Tribunal and use the Ontario Arbitration Act to resolve family law-type disputes.

The demand for recognition of religious arbitration was made under the context of multiculturalism and underpinned by s15 of the Char­ter of Rights and Freedoms, a charter which guarantees fundamental freedoms including religious equality. This commitment to cultural and religious pluralism is enshrined in the Multiculturalism Act 1985 and it is this context upon which the limits of law, legality and rights are regularly debated and addressed.

The Arbitration Act 1991 was adopted in the Province of Ontario specifying the procedures that consenting parties could apply if they chose to resolve their disputes outside the adversarial civil law system. Of particular concern was its use among wider religious communities as traditionally the Act had been used by the Jewish Orthodox com­munities only to form tribunals to deal with commercial disputes and agreements (including performing religious divorces). Was this option available to all religious communities seeking to resolve matrimonial disputes? Whatever the answer to this question it became apparent that its use by Muslims communities in Canada was not only per­ceived as controversial but was also unforeseen. The call itself was made by a former Muslim leader and president of the Canadian Soci­ety of Muslims, Syed Mumtaz Ali, who argued that Muslims should

ShaTiaCocikaftdM-Wstam taaw^i,lγ 117 سأ be granted greater autonomy in matters of family law as existing pro­visions and constitutional arrangements failed to support the practice of their religious lives. The significance of ethnic, class and kinship differences within Muslim communities was erased to promote the view that all Muslims were religiously obligated to use Sharia to resolve family law matters. Ashe and Helie refer to this as a form of ‘religio-legal pluralism’ whereby religious communities are given greater autonomy in family law matters but this is only enforceable via the power of state law and civil consent orders.⁴⁴ The fact that this form of religious pluralism would not only be endorsed but be supported by the state raised alarm bells for many, notwithstanding Muslim women’s organizations. And what exactly would be the role of the courts in this process? How would this type of religious govern­ance take place? The most important and defining factor in this form of religious pluralism was the continued use of and primacy of state law. As Baines explained, ‘Ali did not propose to sever the relation­ship between arbitration tribunals and courts. Instead he sought to restrict the role of courts to purely procedural matters: judges should not be called upon to interpret sharia law.’⁴⁵

Under this process the courts delegated to religious authorities in matters of family law. The fact that judges were unable to intervene in potential oppressive contexts based upon orthodox religious prin­ciples was of huge concern to many Muslim women and feminists. For example, one prominent Muslim woman activist Shahnaz Khan explained,

It is unlikely that all ‘consenting’ adults particularly women, would willingly and gladly consent to arrange their lives accord­ing to laws which give them unequal status before the law. Al­though we may characterize some women as ‘choosing’ no doubt they would experience a certain amount of pressure to conform. However should they decline to be governed by Muslim Personal Status Laws and find themselves ostracized by their families and their community, they would have to confront the discrimination of the larger Canadian population....⁴⁶

Of particular concern was the unproblematized use of Sharia Law and the failure of Syed Ali and others to the potential of intra-community inequalities and injustice experienced by vulnerable women. The argument that all Muslims are obligated to use Sharia principles to resolve matrimonial disputes is also flawed and open to dispute. Op­position, therefore, came from various Muslim women’s and feminist

organizations including the Canadian Council of Muslim Women (CCMW) and the National Association of Women and Law (NAWL). The primary argument made was that the establishment of such tribu­nals led to a violation of freedoms offered to all women under existing legislation.

The Boyd Report was then commissioned in response to calls for the establishment of a civil law system to incorporate Muslim family law matters into civil law and found that religious arbitration in fam­ily law matters should be allowed to continue as long as safeguards were put into place which emphasized procedural safeguards to pro­tect vulnerable parties who may be compelled to use these services. However, this was opposed by the largest Muslim women’s organi­zation in Canada (The Canadian Council of Muslim Women), argu­ing that this undermined the Canadian constitution which promotes ‘equality before the law’ for all its citizens. The resulting Boyd Report and critiques of Muslim women’s choice in the face of moves towards religious autonomy led to the introduction of Bill 27 by Ontarian Premier McGuinty intending to ban all religious-based arbitration of family matters, marking what Ashe and Helle describe as ‘Ontario’s commitment to religious pluralism and its rejection of legal- and spe­cifically religio-legal-pluralism’.⁴⁷

Canadian Muslim women’s organizations challenged this proposal and the findings of the Boyd Report which called for the recogni­tion of religious tribunals as long as some safeguards were in place. The furore led to the government rejecting that position. As Eekelaar (2013) points out:

The result was that, while religious bodies may still carry out arbitration in family matters under the Arbitration Act they must do so according to the law of Ontario or of another Canadian jurisdiction. Furthermore, regulations require family law arbi­trators to undergo training in the law of Canada, that cases are screened for ‘power imbalances and domestic violence, by some­one other than the arbitrator’ and that a written record be kept of the proceedings.⁴⁸

Ayelet Shachar (2008) points out succinctly that ‘The vision of privat­ized diversity in its fully-fledged “unregulated islands of jurisdiction” variant poses a challenge to the superiority of secular family law by its old adversary: religion.’⁴⁹ This vision of privatized diversity can be applied to the new MAT if we understand privatized diversity as a model in which to achieve and possibly separate the secular from the

ShaTiaCocikaftdM-Wstam taaw^i,lγ 119 سأ religious in the public space, in effect encouraging individuals to con­tract out of state involvement and into a traditional non-state forum when resolving family disputes. This would include religious tribunals arbitrating according to a different set of principles than those en­shrined in English law.

For Shachar there are real concerns of individuals being expected to live ‘as undifferentiated citizens in the public sphere, but remain free to express our distinct cultural or religious identities in the private do­main of family and communal life’.⁵⁰ For her and many other liberal scholars, the issue surrounds the contentious question of where pri­vate identity and life ends and public identity begins. She quite rightly points out that, if we are expected to express personal identities in the private, at which point in the public sphere do they cease to be so? Shachar also discusses the fact that the vision of privatized diver­sity will evoke different feelings for different people. For those who want to establish a pluralistic system of law that recognizes claims of culture and religion, this would not be so terrifying, but those who are ‘blind’ to these needs will see it as challenging the superiority of universal laws that apply to all:

for others who endorse a strict separationist approach, or ‘blind­ness’ towards religious or cultural affiliation, the idea that we might find unregulated ‘religious islands of binding jurisdiction’ mushrooming on the terrain of state law is seen as evidence of the dangers of accommodating diversity, potentially chipping away, however slightly as the foundational, modernist citizenship for­mula of ‘one law for all’.⁵¹

In 2011 a private members bill, the Arbitration and Mediation Ser­vices (Equality) Bill, was introduced by Baroness Cox in the House of Lords. This Bill was reintroduced in October 2015 and 2016-17 and has generated considerable media attention as it aims to make clear the limits of arbitration and make amendments to the Arbitration Act to ensure its compliance with the Equality Act 2010 while seeking to outlaw discrimination on the grounds of sex. Clause 7 of the Bill proposes an amendment to the section of the Courts and Legal Ser­vices Act 1990 and criminalizes ‘falsely claiming legal jurisdiction’ to prevent the ousting of jurisdiction in matters of family and criminal law. Although the Bill does not specifically mention Islamic law it was widely believed to target Muslim communities and to attempt to limit the powers of organizations such as MAT and the Sharia Councils. But for many scholars it raised the question of the extent to

which state law should intervene in religious councils and tribunals. It has been criticized for promoting the idea that the practice of Mus­lim family law is not only based upon unfair and unequal principles but specifically targets and discriminates against Muslim women as primary users of Muslim dispute resolution bodies. Furthermore the formalist top-down state interventionist approach as epitomized by the Bill in seeking to limit the powers of religious bodies has also been criticized as being predicated on fixed and homogeneous notions of Islam and Islamic legal practice which fails to recognize the dyna­mism and pluralism within the communities themselves. As Eekelaar (2013) argues:

It is a mistake to think of Shari’a as a monolithic system, impervi­ous to change. In fact the bodies apply it in different ways, and it is subject to internal arguments and contestation. Might it be bet­ter to allow it to develop within its communities and responding to its internal critiques and influenced by the culture around it? Alongside this, its adherents could be encouraged to make more use of the civil law, including a greater readiness to enter legally recognized marriages without thereby severing their relationship with their religious norms.⁵²

But what are the experiences of Muslim women using religious mech­anisms of dispute resolution in family law matters? Do religious tri­bunals promote patriarchy and gender inequality? At present, we have three significant pieces of research which provide important insights into how Sharia Councils in Britain govern as alternative dispute resolution mechanisms in the field of family law. In my work, Sha- Tiah Co cils andM-islim Womern Tta Cendingthe Boundatiesof Community and Law, I draw three key conclusions from undertaking extensive empirical research with five sharia councils and interviews with 25 British Muslim women. Firstly, the claim that seeing cul­ture and forms of religious practice as a mode of legitimizing claims to power and authority dramatically shifts the way we understand the debate on liberalism and universalism versus relativism. In other words, the view that Muslims increasingly seek the freedom to live under sharia is not only extremely problematic but fails to capture the complexity of British Muslim identity as fragmented, porous and hybrid. Second, anthropological scholarship points to the importance of locating gender and gender relations as key sites to the debate; thus, the ways in which Muslim women engage with Sharia Coun­cils in Britain illustrate how processes and concepts of Sharia Law

ShariaccuncilsanclMuslim Famify 12 سأA are mobilized, adopted and transformed. Underlying this process are power relations that define the nature of the interaction, define mean­ing of sharia within Sharia Councils and construct possibilities of change and action. Finally an essentialized understanding of Muslim religious practice does not reflect the experience of British Muslim women. A more dynamic understanding of British Muslim identity is required, which does not label the needs of Muslims to accommodate sharia as fixed but understands this process as temporal, with shifts from cultural to religious practice and vice versa. Elham Manea ar­gues that limited recognition of legal pluralism and multiculturalism has led to the recognition of culture and religion as homogeneous that ignores individual voices and arguments and the expense of col­lective arguments.⁵³ In particular her empirical research with Sharia Councils and Muslim women users of these bodies found examples of practices such as forced marriage, under-age marriage, condoning domestic violence, criminal sanctions and inequities in inheritance.