How Do You Solve the Problem of Sharia in Canada?

[Quetzal]

How Do You Solve the Problem of Sharia in Canada?

This week has seen protests around Canada—and at Canadian Embassies worldwide—as citizens grapple with an issue that blurs the boundary between religious tolerance and oppression. The Ontario government is considering a proposal to allow certain family law matters—including divorce, custody, and inheritance—to be arbitrated by panels of Muslim clerics. Supporters of the proposal say that Canada's commitment to cultural diversity requires that Muslim law be accorded the same respect as other legal systems. Opponents say Muslim law inherently conflicts with the basic freedoms guaranteed Canadians.

Marion Boyd, Ontario's former attorney general, has been appointed by Ontario Premier Dalton McGuinty to determine the appropriateness of these sharia, or Islamic law, tribunals. She's in a tough spot. Ultimately, the question comes down to whether sharia is fundamentally different from other religious codes. And making that sort of determination should not be the responsibility of any democratic government.

The plan to use formal panels of imams and Muslim scholars to resolve family-law disputes is neither radical nor subversive. For one thing, Canadian imams have been informally using sharia law to settle disputes between Muslims for years. For another, a 1991 Ontario law known as the Ontario Arbitration Act permits Orthodox Jews and Christians to submit to voluntary faith-based arbitration. These agreements are then ratified by secular civil courts, so long as their rulings conform to Canadian law, and both parties were willing participants.

more...

http://www.slate.com/id/2106547/

[prodigal_green]

1. if both parties agree to it, as a form of arbitration

I guess it is OK. But in the matter of family law, there have got to be really strong protections that allow any member to turn down arbitration and use the Canadian courts.

Personally, I think this is a bit strange because what is a country but a collection of its laws?

[Canadian_moderate]

4. Like Muslim wives would have a choice?

Don't kid yourself. I know it sounds funny, but liberals need to be intolerant of intolerance. Canadian law should apply to all who live and reside in Canada. No exceptions. We don't need Sharia law. Don't forgot that many people fled Muslim countires to avoid such injustice.

[Donovanf]

2. what i think

As long as both parties voluntarily agree.

[iverglas]

3. here we go again

In a nutshell: arbitration is available to the parties to disputes who do not wish to go to the time and expense of having a court settle the matter. Not just Muslims -- and not not Muslims. Anyone, including Muslims.

Commercial contracts often provide for arbitration to the exclusion of court proceedings. There are laws, and international agreements, the cover this possibility. People may settle commercial and other private disputes however they bloody want -- by drawing straws or reading the entrails of a dog, if that's their choice.

The use of Sharia for this purpose would be no different -- it would be a matter of the choice made by the parties to a dispute. Would any of us want to be told that we could not settle a dispute over who should get the biggest piece of cake by asking our mother to decide? Why should Muslims not be able to ask a cleric to decide?

There is a fundamental misunderstanding that arises whenever this issue is raised among people who are not familiar with either the law or Islam. Sharia is not a great big boogeyman code for oppressing women. It is a system of law that governs a whole lot of other things -- in fact, all the things that legal systems usually govern.

In Canada, there are various kinds of disputes that may NOT be decided by arbitration to the exclusion of the courts.

To begin with, divorce is a matter under federal jurisdiction, so no province could make a valid law to provide for divorce cases to be decided by arbitration (e.g. to determine whether the parties had grounds for a divorce).

Child custody and support can be arbitrated if both parties are agreeable, but NOT so as to oust the jurisdiction of the courts -- either party will always be able to go to a court for a decision, no matter what an arbitrator says, because the courts never lose their jurisdiction over children.

People, right now, whether they be Muslim or RC or unicorn worshippers, can enter into marriage contracts that make specific arrangements for spousal support and division of assets if the marriage breaks down. Those contracts could provide for disputes to be arbitrated rather than taken to court.

If the parties to a dispute under a contract that it is permissible to have settled by arbitration -- a used car warranty, a commercial lease dispute, an employment contract -- choose to have it settled according to Sharia, or according to the arrangement of tea leaves in a teacup as read by a psychic, they may do it.

I have absolutely no desire to see anyone oppressed by anyone else, and I do indeed have some concerns about the use of arbitration in any situation where there is an imbalance of power between the parties as there might be for married women, for example, in marriage breakdown cases in relation to spousal support and division of assets.

But this is an issue NOT ONLY for Muslim women: see the comments of the National Organization of Women and the Law
http://www.owjn.org/custody/nawl.htm
for a discussion of the problems of allowing private settlement of family law disputes in a context in which women are, as a group, economically and socially disadvantaged:

Women and children also need real and substantive access to justice. The principle that non-adversarial dispute resolution mechanisms should be promoted and that court hearings should be a mechanism of last resort, is a principle that may prevent women from having access to public justice. Alternatives to litigation should be used only when appropriate. The promotion of non-adversarial dispute resolution mechanisms such as mediation, counselling, arbitration and parent education courses can be dangerous options for abused women and children. Viewing courts as mechanisms of last resort for families in which there has been violence is wrong when in many instances, it should be their first and only resort.

But the plain fact is that we allow competent adults to make their own arrangements for these matters right now -- we allow people to make marriage contracts waiving support and property rights, and we allow those contracts to be enforced, and we do not require that the economically or socially weaker party have those contracts approved by a court. People have contractual freedom in all matters that are not matters of public policy. I can contract out of my right to a division of family assets upon marriage breakdown -- I just can't contract out of my right to custody of or access to my children.

Canada is a multicultural society. People are entitled to arrange their private affairs as they wish, subject to any overriding public interest in the arrangements they make. Put those two things together, and there is absolutely no reason why Muslims should not be able to choose to settle disputes relating to their private affairs by having the rules of Sharia applied, any more than I should not be able to settle disputes relating to my private affairs by tossing a coin -- as long, in both cases, as the other party to the dispute has agreed to that method. If that agreement is not present, then the party who does not agree will always have access to the courts. And if a party feels that the arbitration agreed on has not been conducted fairly, then s/he will still have access to the courts.

I doubt that most of the people who have opinions about any of this have any idea what Sharia is to start with, frankly. That's sure the impression I got from a previous discussion at DU:
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=782855
(unfortunately the link to the Law Times article about the proposal is no longer good)

Even the Evangelical Fellowship of Canada has a hard time criticizing this idea! -- http://www.evangelicalfellowship.ca/pdf/Shariah%20Law.pdf
(although I think it has got hold of the wrong end of the stick when it comes to custody and access, since those rights *cannot* be contracted out of to the exclusion of the courts' jurisdiction)

Back to that nutshell: using Sharia for arbitrating civil law disputes in Canada does NOT mean that people will be getting stoned, or beheaded, or behanded, or divorced by private fiat, or denied access to their children ...


The Ontario Arbitration Act:
http://www.canlii.org/on/laws/sta/1991c.17/20040802/whole.html

1. In this Act,

"arbitration agreement" means an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them; ...

Arbitrations conducted under agreements

2. (1) This Act applies to an arbitration conducted under an arbitration agreement unless,

(a) the application of this Act is excluded by law...

6. No court shall intervene in matters governed by this Act, except for the following purposes, in accordance with this Act:

1. To assist the conducting of arbitrations.

2. To ensure that arbitrations are conducted in accordance with arbitration agreements.

3. To prevent unequal or unfair treatment of parties to arbitration agreements.

4. To enforce awards.

Equality and fairness

19. (1) In an arbitration, the parties shall be treated equally and fairly. 1991, c. 17, s. 19 (1).

(2) Each party shall be given an opportunity to present a case and to respond to the other parties' cases.

32. (1) In deciding a dispute, an arbitral tribunal shall apply the rules of law designated by the parties or, if none are designated, the rules of law it considers appropriate in the circumstances.

Setting aside award

46. (1) On a party's application, the court may set aside an award on any of the following grounds:

... 5. The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.

6. The applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party's case, or was not given proper notice of the arbitration or of the appointment of an arbitrator.

7. The procedures followed in the arbitration did not comply with this Act.

8. An arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias.

9. The award was obtained by fraud.

Declaration of invalidity of arbitration

48. (1) At any stage during or after an arbitration, on the application of a party who has not participated in the arbitration, the court may grant a declaration that the arbitration is invalid because,

... (c) the subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law; ...

And have a read here:
http://www.canadianislamiccongress.com/mc/media_communique.php?mcdate=2004-08-28

[Canadian_moderate]

5. Soryr, but strongly disagree with you here.

Even if only for civil laws, I don't think we should allow Sharia laws. These laws will be very unfair to Muslim women living in Canada and we should not go down that road.

[iverglas]

6. too bad you didn't bother knowing what I said

Even if only for civil laws, I don't think we should allow Sharia laws. These laws will be very unfair to Muslim women living in Canada and we should not go down that road.

I am at a loss to know how this relates to anything I did say, or what you think you're disagreeing with.

I'm not going to explain it all over again, this not even having been the first time I did it.

Do you even have a clue what these "Muslim laws" you think you're objecting to ARE?

[Zell in Hell]

8. I agree...

And furthermore, any provision of Sharia that contradicts the Charter is null and void, no?

[iverglas]

7. some basic info

http://muslim-canada.org/ambitioninterview.html

2. TA: What is arbitration and is it similar to a court of law?

BMA: Arbitration is the process similar to the court proceedings
but is more fast paced and tries to eliminate the whole
paraphernalia of courts. Parties are allowed to have their
representation by the counsel of their choice and the rulings in
these courts of independent private arbitrations are binding on
both parties and are accepted and on application by any of the
two parties can be enforced by the secular court of Ontario. The
Arbitration Act allows the disputing parties to apply the ‘rules of
law that is designated by the parties.’ This is a broad definition
which gives us the chance to apply the Qur’anic framework and
solve our disputes within the Canadian laws and the Charter of
Rights.

3. TA: What made the arbitration process popular?

BMA: The Civil courts are heavily backlogged and it takes years
to get a date for trials. The Canadian system is wonderful, but
what good is it if you cannot get justice within a reasonable time?
This was the feeling in the legal community and they wanted to
have something done about it. The Government of Ontario took a
bold step and established a Commission that looked into it and
made recommendations that we should have some kind of
court-affiliated mediation/arbitration system. Looking at the
success of these tribunals, the government has now made it
mandatory to go for mediation immediately after, if you file a case
in court. But arbitration is an independent process, you do not
have to go to court to settle your disputes.

4. TA: Considering the treatment of women at our Masjids
and centres, women being at the backstage, and
having a very nominal role to play in the community, if any, do you
think most Imams will be able to do justice?

BMA: Most Imams would not even qualify to become arbitrators,
due to a lack of required education and qualifications. It’s not like
mediation. This is the private court of law and arbitrators must be
qualified. You must be able to handle both Canadian and Islamic
laws. This will take time to train those people and we are taking
our time to arrange a team of arbitrators.

5. TA: Do you have any women on your team?

BMA: Yes. In fact almost half of our team members are female.

6. TA: Who can be an arbitrator?

BMA: In order to be an arbitrator in Canada, you must have
training from the “ADR Institute of Canada” and have knowledge of
the Canadian law in the field that you want to work in. They are
also required to consult the experts on the subject.

7. TA: For the benefit of our readers, could you define the
Sharia?
...

10. TA: I gather that the reason a person would go to
arbitration is to avoid the lengthy court procedure and time and to
get all the benefits and rights, for instance available for women
etc., under the Canadian system. The question is that if we can
do that using the Canadian law, what is the need for Sharia law?
Why do we want to set up a parallel system?

BMA: Sharia is a part of our life. If we proclaim to be a Muslim,
we must live our life according to the injunctions of Allah
and His Prophet. Let’s take the example of marriage. You cannot
have an Islamic marriage without applying Sharia. Similarly, if
there is a fear that a matrimonial dispute is about to occur, the
Qur’an clearly states that you must try to solve it by having two
arbitrators, one from each side. This is the command that in order
to be a Muslim, you must surrender to the command of Allah. If
you don’t, then you are not a good Muslim.

11. TA: This Qur’anic injunction is very general and can be
fulfilled by going to a Canadian arbitration tribunal. Why do we
still need Sharia?

BMA: Let me give you an example. In the case of a divorce that
is agreed upon by both Muslim man and woman, Islamically it is
accepted and the woman is free to get married after her Iddah
<waiting period so as to avoid confusion trgarding paternity if such
is the case>. But this divorce is NOT accepted by the Canadian
law and would take a long time before she/he is allowed to
re-marry because they are not allowed by Canadian law to
re-marry without obtaining a Canadian divorce.) In the Islamic
tribunal, this case can be taken as Khula <a form of divorce> and
can be presented to the court as an uncontested divorce. The
ruling can be made in a much shorter time and the parties will be
allowed to go on with their new lives. Only a Sharia tribunal can
do that.

...

One ought to read the whole thing -- and preferably a few more things, so that one actually knows what one is talking about -- if one is planning to express an opinion about the issue.

[Canadian_moderate]

9. I realize what you're trying to say

and I commend you for your goodwill, but I don't think we need to have special civil laws for every different religious or ethnic group.

I'm all in favour of multi-culturalism, but we don't need to amend our laws to allow exceptions for the various diverse cultures.

In a secular society religous laws have no place. We'll agree to disagree I guess.