By Richard Fidler
“A lie can travel halfway around the world,” the American writer Mark Twain once said, “while the truth is putting on its shoes.” That statement could apply to the recent phony debate over “sharia tribunals” in Ontario.
Odds are that if you consulted the average man or woman in the street on the matter, you would learn that the largest province in Canada had come within an inch of allowing fundamentalist Muslims to institute mandatory “sharia” law, bypassing legislation designed to protect the rights of women and children, eliminating the separation of church and state, and possibly exposing Canadians to the harsh legal punishments found in some Islamic countries. The Muslim scheme, you would be told by many, was turned back only by a vast campaign spearheaded by secular Muslims, feminists, labor unions, and progressives who forced the government to retreat and to ban all resort to religious leaders or principles in resolving legal disputes. It was a great victory for progressive public opinion, a major defeat for reactionary Muslims.
That’s more or less the official story, reinforced by the mass media and believed by many on the left, as well. But it is largely fictitious. And it is important to understand the true story, both because the issues at stake in this controversy may well arise in new and similar contexts and because the stench of the anti-Muslim prejudice stirred up by the “anti-sharia” campaign lingers on. The Islamophobic campaign against “sharia tribunals” has undermined efforts to build a firm alliance with Muslims and other minorities in the fight against imperialist war and domestic war-induced repression, much of it directed first and foremost against members of the Muslim community.
Was “sharia” law the issue?
Despite the claims by some participants, there was no issue involving criminal law or the kinds of state constraints on individual action that are subject to scrutiny by judges for compliance with the Charter of Rights or other human rights legislation. Rather, the issue was simply whether Muslims were entitled to avail themselves of procedures long available in Canadian law to any couple seeking to resolve difficult and intimate questions related to marital disputes and marriage breakdown.
Under Canadian law, couples are free to make their own arrangements both for cohabitation and for separation. In the latter case, where consensus and mediation prove impossible they may resort to private third-party adjudication, choose their own arbitrators, and apply any religious and cultural principles they wish so long as these do not harm others or conflict with the laws of Canada. Or they may decide to take the matter to court and let a judge decide. Which course they adopt is their choice, and no one else’s.
Family law arbitration is strongly supported by family law lawyers, marriage counsellors and other professionals involved in resolving difficult marital issues. It allows disputes to be resolved in an atmosphere of privacy and confidentiality, drawing on the services of expert mediators and arbitrators chosen and trusted by the parties. Arbitration costs less and decisions are issued more quickly than in the court system, where proceedings may drag on for years.
Faith-based arbitration (FBA), conducted by members of minority communities and informed by religious precepts, has long been engaged in by some Jews, Christian evangelical groups and even some Muslims, until now without notable dissent. FBA is favoured in particular by couples for whom deeply-held religious precepts are vitally important to their personal culture and self-definition. Ontario Jews, for example, have been arbitrating family disputes in their Beth Din courts for over a century; such private arbitration has been recognized in Ontario law since the late 19th century. By using the procedures laid down in the Arbitration Act, the parties can have a court enforce the arbitration decision, thus ensuring that the terms of the decision are legally binding. The Act provides minimal safeguards to ensure free informed consent to arbitration.
The courts retain their power to intervene and set aside arbitration decisions, as they can separation agreements, where the “best interests” of children are not honoured or where the decision is “unconscionable”. Similar legislation now exists in a half dozen other Canadian provinces, all of it modeled on a draft law drawn up years ago by the Uniform Law Conference of Canada following extensive discussions.
The controversy in Ontario arose when a Muslim lawyer, Syed Mumtaz Ali, proclaimed his intention to establish a “shari’a court” that would function under the Arbitration Act, thus making its decisions, like all decisions under the Act, legally enforceable.
The campaign unfolds
Mumtaz Ali’s proposal was reported with great sensationalism by some media, most notably the Toronto Star. Media reports took as good coin his misleading reference to “sharia” and highlighted statements by a variety of groups who warned that “sharia tribunals” would impose patriachal Islamic fundamentalist norms on vulnerable women and children. Although most of the opposition clearly reflected anti-Islamic prejudice, some critics, in an attempt to appear even-handed, discovered that they opposed arbitration altogether; many now professed a surprising confidence in the ability of the courts and judges to accommodate the private and intimate concerns at issue in marriage breakdown.
This “anti-sharia” campaign unfolded against a backdrop of anti-Muslim propaganda related to the Iraq war, the growing threats to Iran, and Israel’s ongoing repression of the Palestinians as well as Canada’s increasing military involvement in Afghanistan. (To sense the odour of the campaign, see the article below on the “anti-sharia” opposition.)
Ontario’s Liberal government, headed by Premier Dalton McGuinty, responded to this campaign by asking Marion Boyd, a former Attorney General in Bob Rae’s New Democratic Party government in the early 1990s, to carry out a broad consultation and make recommendations.
Boyd consulted a wide range of supporters and critics of faith-based arbitration. “Sharia law,” she concluded, was a misnomer when applied to the Ontario context. Even Muslim critics of FBA, such as the Canadian Council for Muslim Women, Boyd noted, distinguished between sharia and Muslim family laws, sharia being a much broader concept.
Most of the Muslim supporters of FBA, Boyd reported, thought Islamic family law was compatible with Canadian family law; what they wanted was to apply Canadian law using Islamic principles. They also acknowledged procedural defects in their existing informal arbitration procedures and saw compliance with the Arbitration Act as a means of overcoming these problems. (See below for accompanying article, “Faith-based arbitration – a Muslim Perspective.”)
Boyd endorsed this perspective and proposed a broad set of legislative reforms to enhance the quality of decision-making and ensure that parties to private arbitration of family law disputes (especially vulnerable women) would be more fully apprised of their rights under Canadian law. (For more on Boyd’s report, see “McGuinty’s Ban on Faith-Based Arbitration: No Victory for Women’s Rights”, Socialist Voice #52, October 9, 2005.)
Boyd’s 180-page report was endorsed editorially by the province’s major newspapers, including the Toronto Star. But it failed to stem the “anti-sharia” campaign. The media reported little about Boyd’s proposals while continuing to feature prominently the misleading propaganda of the opponents of FBA, who if anything became even more strident. The NDP broke with its former attorney general, denouncing her report and calling for an end to all family law arbitration. It was joined in this by many trade unions and civil liberties organizations. The Quebec National Assembly chimed in, unanimously voting to reject “sharia tribunals” even though no such proposal had been made in that province, where a distinct statutory regime quite different from Ontario’s governs family law.
Just as a real public debate on the substantive questions discussed in Boyd’s report was getting under way, however, Premier McGuinty chose the fourth anniversary of the September 11, 2001, attacks to announce that “there will be no sharia law in Ontario.” His brief statement was immediately greeted as a victory by FBA opponents. The Muslim threat to our freedoms had apparently been turned back.
Bill 27 – What does it really say?
Since almost no one was seeking to implement “sharia” – even Mumtaz Ali admitted to Boyd that using the Arbitration Act for a limited number of personal law issues is not the same as having a “system” of justice – it remained to be seen what McGuinty would do.
Although McGuinty’s September announcement was widely interpreted as rejecting all faith-based arbitration and Boyd’s approach, his government’s legislative response to the Muslim proposal – Bill 27, introduced in November – actually reflects a relatively subtle and nuanced appreciation of the underlying issues. It retains the option of private family arbitration under Ontario legislation. More significantly, while stating that family arbitration must be “conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction,” Bill 27 does not, on its face, foreclose the application of Islamic or other religious principles by arbitrators in their interpretation of Canadian family law.
Bill 27 implements Boyd’s major proposal, to make family mediation and arbitration agreements domestic contracts under the province’s Family Law Act and thus subject to the same laws that cover separation, domiciliary and paternity agreements. All of these laws allow couples to make their own arrangements for property division, custody, and support of dependent children and spouses, etc. Such arrangements are subject only to court intervention where such agreements are “unconscionable” or contrary to “the best interests of the child” or where there was insufficient disclosure of significant assets or liabilities or a party did not understand the nature or consequences of the contract.
Bill 27 also adopts Boyd’s proposal to add to the list of professionals required by law to report a child in need of protection “a religious official, including a priest, a rabbi and a member of the clergy; a mediator and an arbitrator” – implicitly acknowledging the role of religious officials in such capacities.
What the amendments will mean in practice is still not entirely clear, as much depends on the regulations yet to be enacted by Cabinet. These will cover such vital matters as the training and certification of arbitrators (e.g. will a law degree be required?), standard provisions of family arbitration agreements, etc. Until those regulations are enacted, the amendments are not yet proclaimed in force. And there is evidence that the McGuinty cabinet is consulting FBA opponents and not proponents as it grapples with these issues.
However, the bill’s incorporation of Boyd’s major proposals testifies to their basic reasonableness. More importantly, it underscores the irrationality – and, it must be said, Islamophobia – of much of the “anti-sharia” lobby. These critics, apparently satisfied with McGuinty’s earlier disavowals of “sharia tribunals”, appear to have paid little attention to the actual content of Bill 27. No surprise there. It was apparent from their attacks on “sharia tribunals” that few had made any attempt to understand what faith-based arbitration actually entails. The bill passed the legislature in February after only a couple of days of public hearings.
In part because the bill itself is silent on who may conduct arbitrations – it neither prohibits nor provides for the conduct of private family arbitration by religious authorities – the response by FBA proponents has tended to be uncertain and tentative. For example, all three Jewish organizations that appeared before the MPPs in committee were critical of the bill’s ostensible ban on any arbitration not “exclusively” conducted in accordance with Canadian law. But they did not flatly oppose the new legislation and suggested some amendments.
Only two Muslim organizations made representations on the bill. One, the Muslim Canadian Congress, a secular Muslim group, supported the bill and said little about its contents. The other, the pro-FBA Canadian Islamic Congress, stated that it opposed the bill and confined its remarks to a general defence of faith-based arbitration without addressing any of the bill’s specific provisions. In fact, to date there has been very little public reaction to the new legislation by pro-FBA Muslim organizations. Some have told me they are still considering their approach and weighing their options.
In my opinion, the dearth of public reaction to the bill by Muslim organizations also reflects the intimidating effect of the “anti-sharia” campaign on their community. The scars of the “anti-sharia” campaign will long endure. One of the most damaging results was the deep division it created between Muslims and the predominantly non-Muslim left and labour movement. Among the most outspoken opponents of FBA were the Canadian Labour Congress and the NDP. The anti-FBA campaign sharply undercut the developing alliance between Muslims and non-Muslims in the movement against the war in Iraq and Afghanistan.
In effect, the Muslims were stigmatized by a phony campaign against “sharia” and FBA that had no real basis in fact or law. Yet none of the major anti-FBA critics has acknowledged their error.
In fact, the public debate on these issues, cut short by McGuinty’s September statement, never really resumed. Once Bill 27 was tabled, it was as if there was a conspiracy of silence between the government, the official opposition and the media (and even the NDP, while opposing Boyd and Bill 27, did not campaign against either). In effect, it appears to have been decided to allow FBA subject to certain constraints, but to pretend that the proposal had been defeated. At no point has any acknowledgement been made that allowing Muslims the choice to engage in faith-based arbitration of private family disputes was in fact generally consistent with good public policy. So the Muslims, having been savaged in the media and among wide layers of left and progressive feminist opinion, have been left to twist in the wind. Their stigmatization remains.
April 28, 2006
Some Canadian critics of “sharia tribunals”
Among the more moderate statements issued in opposition to the Boyd report was a “Declaration on Religious Arbitration in Family Law” that actually opposed all use of arbitration in family law issues. It was signed by more than 50 organizations, including the Canadian Labour Congress, the Ontario Federation of Labour, the YWCA, and many other women’s and feminist organizations. It stated that “even with Ms. Boyd’s ‘safeguards,’ the amendments she proposed would effectively put at risk decades of legal reform in keeping with an equality and equal rights framework.”
Many critics were more inflammatory. Among the most vociferous of the “anti-Sharia” opponents was Homa Arjomand, a Toronto-based transitional counselor and refugee from Iran. She is the Coordinator of the “International Campaign Against Shari’a Court in Canada,” which claims a membership of 87 organizations from 14 countries with over a thousand activists. Much of the material on its web site (http://www.nosharia.com/) is outrageously Islamophobic.
One such piece, by Elka Enola of the Humanist Association of Toronto, sketches a startling “Worst Case (but probable) Scenario” of the effect of allowing Muslim FBA, starting with “Stage One — Using the Arbitration Act, the Shari’a courts appear to get legal sanction” and ending with “Stage Three — Muslims now outnumber Christians and the majority rule of democracy is turned on its head as the majority Muslims make Shari’a the law of the land.” It concludes, “We must protect Canada from such a scenario.”
Not surprisingly, the Humanist Association of Toronto proclaimed Arjomand its “Humanist of the Year” in 2005.
More typical of the opposition, perhaps, is a pamphlet published by Rights and Democracy, the Montréal-based International Centre for Human Rights and Democratic Development, a federal government-funded agency that promotes the Canadian government’s “human-rights” agenda around the world and especially in countries where Canada intervenes militarily such as Afghanistan and Haiti. Entitled “Behind Closed Doors: How Faith-based Arbitration Shuts Out Women’s Rights in Canada and Abroad,” it is mainly a polemic against Mumtaz Ali’s “sharia tribunals,” a concept that Marion Boyd explained had little if anything to do with the reality of faith-based arbitration under the Arbitration Act. Like other such statements, the pamphlet condemns the Boyd report but fails to address her specific recommendations. And it is riddled with factual misstatements.
For example, it says: “While it is true that the Orthodox Jewish and Ismaili Muslim communities operate their own tribunals under the Arbitration Act, the vast majority of cases handled by both are commercial disputes. Furthermore, the Ismaili tribunal does not apply religious laws in arbitration.” In fact, Boyd describes the Ismaili Muslim Conciliation and Arbitration Boards (CABs) in detail. She reports, citing their figures, that 63% of their cases are “matrimonial,” 29% commercial, and 8% “other (including inheritance cases).” And she adds: “The CAB system is grounded in the ethics of the faith….”
“Behind Closed Doors” preaches reliance on Canadian courts and state institutions; it assumes that women will be victimized under any system of private law. The entire approach is paternalistic, opposed to choice for the oppressed. It is not hard to see why this is the favoured approach of Rights and Democracy, which implements such reasoning worldwide.
Faith-based arbitration – a Muslim perspective
[Excerpts from an article by Dr. Mohamed Elmasry, national president of the Canadian Islamic Congress. Full text at http://usa.mediamonitors.net/content/view/full/1964]
… [T]he term “Shariah-based arbitration” is a misnomer and the cause of much unnecessary and divisive confusion. The proposed implementation of Marion Boyd’s recommendations was designed simply to establish parity for Muslims in Ontario who desire equal opportunity with other religious groups to participate in consensual faith based mediation and arbitration.
The real issue at hand is that governmentally recognized faith based arbitration could be regulated to everyone’s benefit. It could establish standards for licensing and/or accrediting both men and women (yes, women!) mediators; and it could determine the number and makeup of arbitration teams. For example, a government-supported faith based arbitration system could determine that specific teams be assigned to Muslim community issues; perhaps a team consisting of an elder, an Imam, a woman, a Canadian-trained Muslim lawyer and a social worker….
Faith-based mediation and arbitration are as old as faith itself. Long before Canada existed as a modern state, our First Nations peoples practiced both styles of resolution and still do.
Seeking faith based mediation and arbitration is voluntary. If it is also regulated, participating arbitrators must document fully the fact that all parties involved are engaged in this process of their own free will, as a legitimate alternative to the secular civil court system.
Mediation is usually attuned to the conflicting wants and needs of two parties in family/marital disputes, while arbitration is concerned first with the rights of the opponents and their children, if any. Both processes, however, must follow the laws of the land — a provision made very clear by the Boyd Report but too often dismissed by its opponents.
Western culture has traditionally treated faith-based mediation and arbitration with suspicion. This is because the secular world generally views all conflicts as battles in which one side wins, only because the other side must lose. In such an adversarial culture, superior value is placed on holding one party (often male) wholly responsible for the conflict. Thus, agreeing to any form of mediation and arbitration, faith-based or not, is usually equated (often by women) with giving up one’s rights, power and safety.
But faith, any faith, treats family conflict resolution first and foremost as a type of meditation; that is, restoring peace of mind to those who once shared a mutual partnership of peace within their relationship.
Faith-based mediation and arbitration in Islam are no different than in any other faith group. Along with their Jewish and Christian brothers and sisters, Muslims believe it makes perfect sense to engage in mediation (and meditation!) along with arbitration to resolve family matters, right here in Canada. Here are some key reasons:
1. In matters of family conflict, our Canadian legal system often does more harm than good, as it is based on the premise that in difficult times the other person becomes an adversary, or opponent. Our litigious society — aided and abetted by the professional legal system — has promoted the notion of winners and losers to an absurd degree. In most cases of family conflict, the “winner” may be awarded more money, or gain some satisfaction in being proven “right,” but the conflict has not been resolved, and may never be.
2. In family conflicts, one must deal with all kinds of pain. Faith based mediation and arbitration can inject a major dose of healing into the resolution process. But it is virtually impossible for secular Canadian courts or family lawyers to provide any amount of emotional or spiritual healing. Community leaders who practice faith based mediation and arbitration do not consider themselves lawyers, or marriage and family counselors (although they may be members of these professions), but rather see their roles as being primarily healing ones.
3. Faith based mediation and arbitration have the advantage of allowing the parties in a conflict to agree upon their selection of the impartial third party/parties and even the methodology of how to select those individuals. In Islamic family law, for example, both husband and wife can each select one or more persons to be on the mediation and arbitration panel.
4. Faith based mediation and arbitration cost the conflicted parties much less, both financially and emotionally, since conflicts are generally resolved much faster than if taken through the adversarial justice system. This offers a great advantage by freeing up seriously over-taxed court resources, which have resulted in large case backlogs. For example, it now takes years to complete a divorce settlement anywhere in Canada. The negative financial, social, and spiritual impact on families of such extended delays is far too high. Some judges now advise Muslim couples to seek faith-based mediation and arbitration first before they will hear their pending divorce cases.
5. Mediation and arbitration, faith based or not, offer a positive forward step toward conflict resolution. They are complementary processes that should be an integral part of any justice system; they cannot be outlawed or dismissed.
6. Structured and professionally licensed faith based mediation and arbitration processes can provide valuable legal and social resources to faith-practicing Canadians, as well as potentially attracting many lapsed or non-practicing believers, from within and without all mainstream faith groups.
7. It is far better to regulate faith based mediation and arbitration and to accept them as an integral part of our Canadian justice system, than to reject their present and potential value by marginalizing or suppressing them.
September 15, 2005