Assertion, unsupported by fact, is nugatory. Surmise and general abuse, in however elegant language, ought not to pass for truth. Junius

2004/12/21

Shari'a Hysteria

I've spent some time, weenie that I am, looking over Marion Boyd's report to the Ontario Attorney General called Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion. The purpose of the report was to address the use of Islamic jurisprudence in the arbitrations process. It's already causing some controversy, and even Aljazeera has picked it up.
On the general excellent principle that people can do whatever the hell they want, within the law, I liked the report. I also liked it on the grounds it is a well-considered piece of research on an exceedingly complex subject. If you enjoy this sort of thing, and want to become a weenie yourself, I suggest you read it. Unfortunately this one's going to get bogged down in the soft slush of hysteria and misinformation. Willful misunderstanding, as usual, is the order of the day.

I have to be honest here. Any talk of bringing shari'a law to Canada makes me uncomfortable. Very, very uncomfortable. I dislike any system that makes an a priori claim to infallibility, as shari'a does. I find distasteful shari'a effectively subjugates women, then justifies it as God's law. And on general principles the further the state stays from religion, the better.

But let's be clear about a couple of things. First, shari'a courts are not coming to Ontario. The report makes very plain that what's being reviewed is the alternate dispute resolution process, i.e. arbitrations. Setting up a parallel religious court system for Muslims is not being proposed, slippery slope arguments notwithstanding, if in fact it were possible to do so. There is, to be sure, no consensus in the Muslim community about what shari'a actually means, and not all Muslims follow shari'a in any case; indeed in Western, nominally Christian countries, it is impossible to follow all aspects of shari'a, as shari'a implies not only Islamic jurisprudence but a whole set of regulation affecting personal behaviour.

Marion Boyd's report merely recommends that Muslims be able to avail themselves of the Arbitration Act, 1991, not the implementation of shari'a law. She writes:

[U]nder the current legal structure, establishing a separate legal regime for Muslims in Ontario is not possible. Creating a separate legal stream for Muslims would require change to our justice system on a level not easily contemplated from a practical, social, legal or political point of view. In addition, it must be clearly understood that arbitration is not a parallel system, but a method of alternative dispute resolution that is subject to judicial oversight, and is thus subordinate to the court system. Assertions that arbitration actually provides a system of justice running alongside the traditional court system are misleading and unfounded. Nor would it be at all advisable to encourage the creation of such a system.

Ontarians do not subscribe to the notion of "separate but equal" when it comes to the laws that apply to us. . . Equality before and under the law, and the existence of a single legal regime available to all Ontarians are the cornerstones of our liberal democratic society.


Ms. Boyd proposes
  • to allow Muslims formally to arbitrate certain matters in family and inheritance law;
  • that the provincial government regulate the certification and appointment of arbitrators;
  • that judicial review and government oversight be ongoing;
  • and that the provincial legislature enact changes to the Arbitration Act and the Family Law Act to provide increased safeguards for all faith-based arbitration.

    Further, all arbitrations must fall within the norms of Ontario law and the Charter of Rights. That's all, and no more than other religious groups have been doing using the Arbitration Act. Her Majesty's mighty ship Justice will sail onwards untrammelled. A snowy Saudi Arabia is not coming to a suburb near you, and all stonings will remain figurative and reserved exclusively for politicians.

    But (and this is where the rubber hits the slush) there are some troubling aspects to all of this. One needs to be dealt with right away. There will those on the left (and the right) who will argue that the arbitration process will inadequately protect and even be coercive to women whose knowledge of English and Canadian legal process is limited. The sentiment behind this argument is Canadian Muslims can't be trusted to respect the law. As such, the argument is pernicious and racist.

    Moreover, at least two Muslim groups have been operating faith-based arbitration systems from both the Sunni and Shia traditions. Ms Boyd found no "evidence to suggest that women are being systematically discriminated against as a result of arbitration of family law issues."

    Unfortunately for the provincial Liberals, Ms Boyd's report makes them face a bit of a conundrum. Since other religious groups --- Jewish and Christian ---- have used faith-based arbitration for decades, it can't very well be denied to Muslims. On the other hand, public suspicion and misunderstanding --- gauging the reaction already--- of all things Islamic make intelligent debate of this issue problematic. The Liberals need to screw up their courage --- something, to be fair, they haven't been lacking --- and implement the report anyway. I fear, though, that the slush is already obscuring its real importance.

    4 Comments:

    Blogger Captain Flynn said...

    Another great post, UC. This really is a difficult issue. How can you not let Muslims do this, as Jews and Catholics have? (And one would assume it is the more traditional, conservative elements in those groups who avail themselves of arbitration).

    On the other hand, the largest Muslim group in Canada (I forget its name) has come out against this, saying it is something the right-wing fundamentalists want.

    This whole arbitration act was probably a mistake, but what do you do now?

    Wednesday, 22 December, 2004  
    Blogger Captain Flynn said...

    A follow up to my other comment. In the Star today, it was pointed out Marion Boyd was actually the politician who implemented the Arbitration Act in 1991 as Attorney General of Ontario. Why the heck, then, would they commission her to do a study of her own handiwork?

    Wednesday, 22 December, 2004  
    Blogger Michael said...

    True enough Flynn, and point well taken. I suppose the provincial Attorney General thought Boyd might be the most qualified to look at the Act, since it was her legislation! But ultimately, I think both the government and Boyd have acted in good faith. Boyd, in particular, was quite clear about deficiencies in her previous legislation. It should be pointed out, too, that the Arbitration Act, 1991 replaced the older Arbitrations Act. I am not sure if the legislation of 1991 was a radical overhaul of the previous Act or only an updating --- and the weather is too foul here for me to make the trek to the Trent University library to compare the statutes! Regardless, it's probably all moot: the point is the Shia group has been operating since 1982 under both Acts, and Jewish and Christian groups have been using it for much longer.

    Wednesday, 22 December, 2004  
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    Friday, 09 December, 2005  

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