British Columbia Supreme Court Rules Against Polygamy

November 23, 2011 by · Leave a Comment 

By Adil James, TMO

In a 270 page decision that seems to provide a detailed look into polygamy from the perspectives of law, sociology, and the personal experiences of witnesses, Justice Bauman of the British Columbia Supreme Court ruled that there is a conflict between Canada’s law against polygamy and the Canadian Charter of Rights and Freedoms, but that the conflict is legally justified by the harms that the law is meant to avoid.  Secondly, the Justice ruled that the application of Section 293 can be applied to adult polygamous marriages.

Therefore the Justice ruled against polygamy in Canada.

On deeper inspection, Bauman’s opinion appears to be a carefully crafted argument in support of Western law curtailing polygamy, which fails to consider important facts which militate against such laws.

The decision is noteworthy because it is a detailed exploration of the field of polygamy.  It touches on Islam, respectfully, and explores the involvement of Muslims today in polygamy.  The opinion shows the solicited opinions of people providing social services to Muslim families on polygamy. The opinion even refers to Prophet Muhammad (s), and respectfully.

For months Supreme Court Justice Robert Bauman has been considering and preparing this judgment in a case to decide whether Canada’s law regarding polygamy is limited by its law regarding freedom of religious practice.

Although today’s ruling is not the final ruling on the matter (the result certainly may be appealed to Canada’s Supreme Court from the provincial Supreme Court), today’s ruling will necessarily be a a reference point for future discussion of polygamy in Canada and the US, despite its bias and failure to consider facts inconsistent with its conclusion, because it touches on many tangent issues, especially a deep exploration of Canadian historical law and the Canadian constitutional machinery in relation to polygamy and Section 293. 

The case at hand revolved around members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), which continues to espouse polygamy despite the mainstream Mormon church’s having turned away from the practice. Throughout a corridor of Western states and up into Canada (especially Bountiful, BC), many Mormons continue the practice despite the certain illegality in the US and the illegality until now of the practice in Canada.

The judgment is a measured look at many issues surrounding polygamy, but it does show some bias against polygamy from the beginning, by exploring the harms of polygamy over many pages—likely half the pages in the judgment either mention harms from polygamy or are in support of sections that explore the harm from polygamy.  The opinion does not explore an issue directly impacted by the law which is not enforced, namely sexual relations outside of marriage.  Bauman does not discuss whether it is fair to enforce s. 293 against polygamists but then fail to enforce the law against adulterers, or whether it is fair to enforce a law against adulterers while failing to consider the polyamorous activities of people who never marry.  He does not consider the evolving notions of what constitutes acceptable sexual behavior, for instance in the past in Western societies it was unacceptable for men and women to cohabit without marriage, and yet now many do so, and bear children without the benefit of legitimacy.  He failed to consider polygamy in relation to non-traditional marriages that are now legal in Western countries, such as same sex marriages.  While polygamy may be connected to harms in the specific fact pattern Bauman analyzed, it is very unclear that restrictions on polygamy can be enforced without hypocrisy by men, judges and politicians, who engage in affairs outside their marriages, or who otherwise engage in behavior that their ancestors would have had them imprisoned for.

Bauman looks at length at the harms he traces to the FLDS practice of polygamy, but does not consider alternative modes of polygamy, fact patterns that are different.  He argues that the majority of nations do not allow polygamy, but he does not delve very deeply into the figures concerning this—other writers have argued that the majority of the world’s people live in societies where polygamy is allowed.  Important nations allow polygamy, such as Malaysia, India, Egypt, and others.  Bauman does not contrast the harms of polygamy as FLDS practices it with the benefits of it in other contexts. 

Bauman in his opinion also explores Western historical bases for monogamous marriage.  He discusses the harmful effects on children groomed for and coaxed unwillingly into marriages with men many years their senior, who marry multiple women and girls without limits.  The judgment explored the fact that some men become an underclass of unattached bachelors for whom no wives are available.

He makes it clear that s. 293 is meant to apply without exception, not allowing any polygamy at all, and he discusses at great length the harms that he connects to polygamy.

Justice Bauman relates these harms as the basis for Section 293; he does conclude that there is a conflict between Section 293 and the Charter, (page 211 of the opinion), “I will hereby express my conclusion:  I accept the Amicus’ submissions that s. 293 violates the religious liberty of those persons I have described in a manner that is non-trivial and not insubstantial,” however in Canadian law as in US law there is a balance that must be performed between the “violation of religious liberty” and the harm such violation is meant to address. Since the facts before Bauman involved abuse and exploitation of minors on a large scale, and since his opinion focused on those harms, it is natural that his resulting opinion found that the Canadian criminal against polygamy justifiably violated those religious liberties.

The judge ruled that Section 293 of the Criminal Code of Canada (which outlaws polygamy) and the Canadian Charter of Rights and Freedoms, the conflict is “a law that is substantially constitutional and peripherally problematic,” the peripheral problem involving the application of Section 293 against people between 12 and 18 who are involved in polygamous marriages, until they turn 18 (a peripheral issue).

The implications of this court case to date are (1) that Canada will not be the sole Western state to endorse polygamy legally, (2) that Muslims are also constrained by Section 293—the application of 293 is not limited to the current facts of FLDS’s wholesale exploitation of minors, (3) the case will likely be appealed and will likely be affirmed, (4) the In the Matter of:  Constitutional Question Act, RSBC 1986, Docket S097767, is likely required reading for anyone interested in the Western legality of polygamy, and will likely be required reading for some time.

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Islamic Parties Rise

November 3, 2011 by · Leave a Comment 

Political Islam will have to deal with clashing interests

Religion remains an unavoidable reference for the Arabs and as such will be critical in building the future

By Tariq Ramadan

2011-10-25T200235Z_715025985_GM1E7AQ0BBL01_RTRMADP_3_TUNISIA

Supporters of the Islamist Ennahda movement celebrate outside Ennahda’s headquarters in Tunis October 25, 2011. The party said on Tuesday it had won more than 40 percent of seats in Sunday’s election, pledging to continue democracy after the first vote that resulted from the “Arab Spring” revolts sweeping the Middle East and North Africa.

REUTERS/Zohra Bensemra

Over the last few weeks the new Libyan leader, Mustafa Abdul Jalil, chairman of the National Transitional Council (NTC), has been repeating, “Sharia will be the main reference and will be implemented in Libya.” Several of his references to Islamic legislation came in the presence of western politicians and intellectuals like the pro-Israel French self-styled philosopher Bernard Henri Levy, who, surprisingly, did not react with any shock whatsoever. Surprising indeed! It was as if Abdul Jalil was determined to show that the ‘Libyan revolutionaries’ were truly independent and not supported or protected by France, the US, or the West. The West kept silent, though some media have asked pointed questions about whom the French, the Americans and the British were supporting.
Given Libya’s extremely complex political situation, Abdul Jalil’s statement was timely and very smart. He referred intentionally to concepts seen as very controversial in the West to make it clear to the Libyan people he was not a western puppet. In a way that seemed weird to a western ear, he spoke of Sharia and polygamy, knowing that for the emotionally wrought Libyan Muslims he was offering proof of his complete independence (such references are of course demonised in the West). For France, Britain and the US it was a way to show the world that Libya was now “on its own;” time for Nato to allow the new Libya to build its future by relying on its own traditions. The religious and political reference to Islam thus serves to appease the Muslims and lend traditional and religious legitimacy to the NTC while concealing the West’s tri-dimensional — military, geopolitical and economic — penetration of Libya.

The Arab uprisings are showing that the peoples of the region are drawn to freedom, dignity and justice but are not prepared to betray their traditions and religious beliefs. The recent victory of Tunisia’s Islamist party, Al Nahda, in that country’s constituent elections, underlines a historical reality: Islam remains an unavoidable reference for the Arabs and as such will be critical in building the future, especially through the democratic process by which peoples are now able to express their political demands, their concerns about identity and their economic hopes. The conservative parties that invoke Islam in one way or another (hence the Islamists as well) are gaining ground and achieving greater political legitimacy. They are operating on three distinct levels: acceptance of democratic rules, preservation of the nation’s Islamic identity and readiness to open their markets to the dominant economic powers and the multinational corporations.

The Turkish example has set a precedent: no one can deny that the AKP — coming from an Islamist background — is proving its leadership’s success in these very three fields: they are religiously conservative, geopolitically prepared to deal with all the western powers (including, until recently, Israel), and economically integrated into the dominant capitalist system. They have shown great openness (with the EU) and demonstrated considerable flexibility. The West can indeed do business with any Islamist party that evidences a similar willingness to adapt and to collaborate, from Al Nahda to the Muslim Brotherhood. Things are moving fast in the Middle East and North Africa (Mena); the new political strategies are based on new economic and geopolitical concerns, driven by the active presence of new state actors in the region: Brazil, Russia, India and China (Bric). The West has no time to waste in the race to win Arab minds, hearts and money.

In these highly complex political and economic games, one issue stands out as crucial. The western countries have shown in the past that they have no major problem in dealing with political Islam to protect their interests. Given the presence of the Bric’s countries, they have no choice as the latter are ready to establish strong political and economic ties whatever the situation in the respective Arab countries.

Stance against Israel

The key factor will be Israel. All the Islamist parties have taken strong position against the Zionist state (even Turkey recently), which is the reason for their broad popular support (including the current Iranian regime). The Islamists may well be ready to promote the democratic process and to participate fully in the dominant economic system (the great majority of the Islamist parties accept it today) but they remain quite explicit in their stance against Israel. Here lies the core of the acute tensions and contradictions in the US and the European countries: they need to be involved in Mena but they cannot distance themselves from Israel. Meanwhile, the Bric countries do not have the same historical alliance with Israel and they seem ready to challenge the western bias towards the Middle East conflict.

The Islamic reference is at the heart of the debate in the Arab world.

Political Islam is at the crossroads: it faces numerous challenges and must deal with conflicting interests. Only a comprehensive approach can give us a sense of what is at stake. Many trends — even some Islamist parties — are playing with Islam in an attempt to gain legitimacy.

There can be no doubt that politics corrupts. Who, in the Arab countries, will be able to hold power while respecting the Islamic imperatives of dignity, justice and transparency — let alone truly supporting the just cause of Palestine?

Tariq Ramadan is Professor of Contemporary Islamic Studies in the Faculty of Oriental Studies at Oxford University and a visiting Professor at the Faculty of Islamic Studies in Qatar. His new book Islam and the Arab Awakening will be out this month.

Gulf News

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Malaysian Polygamy Club Draws Criticism

January 9, 2010 by · Leave a Comment 

By Liz Gooch, New York Times

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Mohamad Ikram Ashaari and his four wives and children at his home in Kuala Lumpur.      Palani Mohan for International Herald Tributne.

KUALA LUMPUR — Rohaya Mohamad, 44, is an articulate, bespectacled medical doctor who studied at a university in Wales. Juhaidah Yusof, 41, is a shy Islamic studies teacher and mother of eight. Kartini Maarof, 41, is a divorce lawyer and Rubaizah Rejab, a youthful-looking 30-year-old woman, teaches Arabic at a private college.

The lives of these four women are closely entwined — they take care of each others’ children, cook for each other and share a home on weekends.

They also share a husband.

The man at the center of this matrimonial arrangement is Mohamad Ikram Ashaari, the 43-year-old stepson of Hatijah Aam, 54, a Malaysian woman who in August established a club to promote polygamy.

“Men are by nature polygamous,” said Dr. Rohaya, Mr. Ikram’s third wife, flanked by the other three women and Mr. Ikram for an interview on a recent morning. The women were dressed in ankle-length skirts, their hair covered by tudungs, the Malaysian term for headscarf. “We hear of many men having the ‘other woman,’ affairs and prostitution because for men, one woman is not enough. Polygamy is a way to overcome social ills such as this.”

The Ikhwan Polygamy Club is managed by Global Ikhwan, a company whose businesses include bread and noodle factories, a chicken-processing plant, pharmacies, cafes and supermarkets. Mr. Ikram is a director of the company.

While polygamy is legal in predominantly Muslim Malaysia, the club has come under fire from the government and religious leaders, who suspect it may be an attempt to revive Al-Arqam, a defunct Islamic movement headed by Mrs. Hatijah’s husband, Mr. Ashaari Mohamad, who is the founder and owner of Global Ikhwan. Al-Arqam was banned in 1994 for “deviant” religious teachings.

The club denies allegations that it is trying to revive Al-Arqam, and says that the aim of the club is to help single mothers and women past “marrying age” find husbands.

The Ikhwan Polygamy Club says it has 1,000 members across Malaysia, Indonesia, Australia, Singapore, Thailand, the Middle East and Europe. It recently started a branch in Bandung, Indonesia, and plans to open another one in Jakarta. Most of the members are employees of Global Ikwan or former members of Al-Arqam.

Members get together regularly for meetings and relationship counseling, which is given by senior members of the group.

Under Malaysian law, it is legal for Muslim men to marry as many as four wives, although they must obtain permission from an Islamic, or shariah, court to marry more than one. Women’s groups say it has become easier for men to obtain permission to take multiple wives in recent years, a development they say coincides with a rise in Islamic conservatism in Malaysia.

While some states require men to obtain the consent of their existing wives before seeking court permission to marry another wife, Sa’adiah Din, a family lawyer who practices in the shariah courts, said other states no longer required the wives’ consent.

In 2008, 1,791 men applied to the shariah courts, which apply only to the country’s Muslim population, for permission to take another wife, up from 1,694 in 2007. The government could not provide figures on the total number of polygamous marriages, but researchers including Norani Othman, a sociologist at the National University of Malaysia, said the number could be as high as 5 percent of all marriages.
Despite the growing number of polygamous marriages, the club’s effort to promote the practice has put it in the sights of the authorities.

The Department of Islamic Development Malaysia, a government department that is responsible for the promotion and administration of Islam, is investigating the activities of the Ikhwan Polygamy Club and says it believes Mr. Ashaari and his family may be promoting teachings contrary to Islam. A spokeswoman would not provide further details, saying the investigation was continuing.

Al-Arqam had asserted that Mr. Ashaari had the power to forgive the sins of Muslims, an act Muslims believe can be done only by God. Some reports have suggested that the movement had as many as 10,000 members when it was banned.

A leading religious official, Harussani Bin Haji Zakaria, the mufti of Perak State, said followers of Al-Arqam had claimed that Mr. Ashaari had the power to send people to heaven or hell.

Mr. Harussani said he believed the polygamy club could be a front to resurrect Al-Arqam. “I think because they have been banned they want to attract people to come to him again,” he said, referring to Mr. Ashaari.

The club has also been criticized by women’s groups like Sisters in Islam, a nongovernmental organization based in Malaysia.

Ms. Norani, the sociologist, who is the lead researcher in a Sisters in Islam project investigating polygamy, said the practice could be harmful to women and children, particularly those born to first wives.

She and her fellow researchers have interviewed 2,000 men, women and adult children who have experienced polygamous marriage.

Although she stressed that her comments were based on preliminary observations, Ms. Norani said many of the first wives interviewed reported feelings of resentment and depression after their husbands took a second wife, and “a significant number” had considered divorce.

She said she knew some well-educated, financially independent women in Kuala Lumpur, including business executives and lawyers, who had chosen to become second or third wives.

“Usually they marry late, they do a second or third degree, they put off marriage until later and they find it difficult to find an unmarried man,” she said. “One of them said ‘all the good men are either married or gay.”’

With 17 children among them, ages 6 to 21, Mr. Ikram’s four wives all have their own homes near their workplaces, but on weekends they gather at the family’s five-bedroom house on the outskirts of Kuala Lumpur.

Most of the older children are at boarding school or university, but the children of primary-school age stay at the family house, where they are usually cared for by the first wife, Juhaidah, during the week.

Mr. Ikram takes turns spending nights with each of his four wives. “It’s like one, two, three, four,” said Dr. Rohaya, pointing to each of the wives.

The wives usually meet Mr. Ikram at the family house but they say there is no strict arrangement, and Mr. Ikram sometimes comes to their individual homes during the week.

On weekends, at the family house, the women take turns doing the cooking.

“We share clothes,” Dr. Rohaya said. “We’re like sisters, really.”

None of the women grew up in polygamous families, and although they admit to having had some initial reservations, they all said they were happy and would recommend polygamous marriage to their daughters.

Mr. Ikram rejected suggestions from the women’s groups that polygamous marriages may benefit men while causing hardship for women.

“Actually, in a polygamous marriage it’s more of a burden to a man than to a woman because the husband has to face four different women, and that’s not easy,” he said, prompting laughter from his wives.

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