Ontario to outlaw faith-based arbitration

Last week, the Government of Ontario promised to outlaw the use of faith-based arbitration to settle family disputes.

This story is a obvious candidate for my blog:  religion, law, and politics are among my preferred topics, and I often post on events in Canada which are likely to interest readers elsewhere. But this is a complex story and I needed a chunk of time to address it adequately. A little belatedly, here is my account of the issue.

Background

The background was succinctly reported by the Globe and Mail (republished at Rabble.ca):

Ontario's Arbitration Act from 1991 provides for voluntary faith-based arbitration to resolve civil and family-law disputes. This allows Muslims, Jews and other religious groups to use the principles of their faith to settle matters such as divorce, inheritance and custody outside the court system.

In 2003, Syed Mumtaz Ali, a retired Muslim lawyer, established the Islamic Institute for Civil Justice, with an aim to train imams and religious scholars to resolve civil dispute in the community, a process already under way informally.

His announcement prompted the Ontario government to appoint former NDP attorney general Marion Boyd to review the Arbitration Act. She concluded there was no evidence women were being discriminated against in faith-based arbitration and recommended the existing arbitration system be strengthened.

International protests

Prior to last week’s decision, the Ontario government was reviewing Ms. Boyd’s report. Meanwhile, protests were occurring, not only in Canadian cities, but also in Paris, London, Stockholm, Amsterdam and Düsseldorf.

If Ontario had endorsed sharia, it would have been the first Western jurisdiction to take that step. Protesters saw it as a dangerous precedent. The Globe and Mail reported,

Homa Armojand, co-ordinator of the campaign, told about 300 protesters at Queen's Park that the lobby to allow faith-based arbitration for Muslims in Ontario is "not a coincidence, but part of a global move pushed by leaders of political Islam who need validation from the government of the West."

Objections to sharia

Sharia is a body of law governing every facet of life (presumably meaning there's little regard for a private sphere beyond the reach of legal authorities). It is based on Islamic principles, derived from several sources, including the Qur'an. Notwithstanding the fact that it is understood differently in different Muslim nations, critics say it is inherently discriminatory toward women:

• male heirs receive a greater share of an inheritance than female heirs;
• husbands, not wives, may initiate divorce proceedings;
• in divorce cases, fathers are generally awarded custody of daughters who have reached the age of puberty; and
• where it is taken to an extreme, sharia provides for the stoning of a woman found guilty of adultery, or the marriage of girls as young as eight years old.

In theory, faith-based arbitration (which is already practised) must comply with Canadian civil law. Decisions which are contrary to Canadian law may be appealed. But, according to an article at blogcritics.org, critics

point to the fact that so many Muslim women are new immigrants who do not speak the language and have little understanding of their rights. It is feared this will lead them to comply with what ever rulings are handed out by the religious council deciding their case, no matter how much they suffer for it.

They also point to how the Orthodox Jewish system has been used against women in the past, to prevent them from getting a civil divorce. Under Jewish law a woman must be granted a religious divorce or she will not be able to remarry and any future children will be considered illegitimate. Men have coerced women into not applying for alimony and child support by threatening not to give them a religious divorce.

To a devoutly religious person these sorts of threats are very powerful. If carried out they will make her an outcast in her own community.

Note that blogcritics.org broadens the criticism to include the Orthodox Jewish tradition. Opponents of sharia argue (with some justification, in my view) that all conservative religious traditions subordinate women to men.

Relation to provincial law

Canada, like the USA, has a federal system of government. Marriage is within provincial jurisdiction. Provincial governments set the standards concerning who can perform marriages, what the fees for the services cost, and what exactly constitutes a wedding ceremony. Where a marriage breaks down, it is up to the province to enforce divorce agreements. Blogcritics.org explains:

If a parent is negligent in fulfilling his or her requirements under the terms of the divorce agreement, it is the province that imposes penalties. Lack of child support, failure to comply with custody, and visitation orders, and alimony are all under the jurisdiction of provincial law.

Obviously this creates the possibility that the state may be called upon to enforce the faith-based decision of an arbitrator.

Ontario’s decision

Last Sunday, the Premier of Ontario decided it was time to stamp out the growing controversy. CTV news reported:

Ontario Premier Dalton McGuinty says there will be no sharia law in his province and that he will move to ban all faith-based arbitrations.

Seeking to end months of debate, McGuinty said he would not let his province become the first Western government to allow the use of Islamic law to settle family disputes and that the boundaries between church and state would become clearer by banning religious arbitration completely.

"There will be no Shariah law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians," McGuinty told The Canadian Press. …

McGuinty said such courts "threaten our common ground," and promised his Liberal government would introduce legislation as soon as possible to outlaw them in Ontario.

"Ontarians will always have the right to seek advice from anyone in matters of family law, including religious advice," he said. "But no longer will religious arbitration be deciding matters of family law."

Muslims and Jews respond

Some Muslim women lobbied against sharia. However, there are other Muslims, women included, who believe that Ontario has made the wrong decision. The Globe and Mail quotes Katherine Bullock, with the Islamic Society of North America:

Ms. Bullock said the aim of sharia is justice and that its values are compatible with Canadian values of justice, respect and dignity.

"The main understanding of women's equality in the West is the liberal feminist version, which is that if men and women are not treated equally and in an identical manner then women are being oppressed," she said.

"There are other understandings of what women's equality means, and one that is best expressed from the Koranic point of view is that women are different but equal."

For example, she said that although sons inherit more than daughters under sharia, men are also supposed to "maintain" women, so the imbalance is justifiable.

Jewish groups also object to the decision. They contend that a blanket prohibition of all religious tribunals is unjust:  "If there is a problem with sharia, they should settle it on its merits," said Rabbi Mordechai Ochs, chairman of the Rabbinical Courts of Toronto.

In other words, the Government of Ontario should not lump all religious tribunals together, but should evaluate the tribunals individually and allow some to continue to operate. According to Rabbi Ochs, "These rabbinical courts have been operating for decades with no complaints."

Blogcritics.org argues against the Premier’s decision on non-religious grounds:

Ironically the granting of arbitration rights to religious bodies allows the government to exercise control over their decisions, and will offer women more protection from religious law than when these tribunals act in an unofficial capacity. …

As it stands right now there is no regulation of Sharia Law in terms of divorce, yet it is currently in use in many mosques throughout Ontario. This means that there are an unknown number of women being treated in exactly the manner the protesters fear will come about if this new legislation is enacted.

Questions

I don’t think it's possible to resolve this dispute tidily. I pose three questions for your consideration:

1. If the state gives legal recognition to faith-based tribunals, and enforces the decisions of such tribunals, does that constitute an intolerable violation of the principle of the separation of church and state?


2. If the state denies legal authority to faith-based tribunals, doesn't that violate the principle of freedom of religion?


3. If the above two principles are in direct conflict in this situation, which principle should yield and which should prevail?

It is precisely in situations like this, where two core values come into conflict with one another, that cases make their way through the court system to the Supreme Court of Canada.