Monday, October 10, 2005

McGuinty’s Ban on Faith-Based Arbitration: No Victory for Women’s Rights

This article was first published in Socialist Worker, September 24, 2005, and republished in Socialist Voice on October 9, 2005.

By Richard Fidler

Editors’ Note–On Sunday October 2, about 300 Toronto-area Muslims and supporters rallied at Queen’s Park demanding that Muslims have equal access to the Arbitration Act in Ontario and opposing Liberal Premier Dalton McGuinty’s decision to ban faith-based arbitration.

Protesters carried signs declaring, “End racism, stop Islamophobia,” “Islam guarantees all my freedoms,” “Implement the Boyd report,” and “I’m educated and able to choose—don’t impose on me someone else’s views.”

Speakers stressed that Christian and Jewish denominations had utilized faith-based arbitration for more than a decade, without a word of protest. Then the request of Muslims to utilize this provision had aroused an uproar—proof of religious discrimination. Speakers denounced McGuinty for giving way in the face of a noisy minority opposed to Islamic rights, without giving the Muslim community a hearing. Participants pledged to continue the campaign against McGuinty’s proposed ban.

The Islamic community needs the alternative of faith-based arbitration, one speaker explained, because “the Canadian court system lacks the healing touch. The courts are lawyer-driven. The system is adversarial. Court proceedings are meant to draw blood, to accentuate the negative. The entire process is prolonged and costly and leaves everyone embittered.”

Another speaker noted that informal faith-based arbitration had been going on in the Muslim community for decades, with no frictions. “We welcomed the government’s faith-based arbitration initiative because we thought it would be good for our arbitrators to be government-trained, so they would be expert not only in Islamic principles but in Canadian law. We wanted our arbitration procedures to be transparent and monitored. We felt this would assure good practice.”

Richard Fidler’s discussion of this controversy, which follows, is reprinted with permission from the September 24 issue of Socialist Worker. –Roger Annis and John Riddell

The Ontario government decision to ban faith-based arbitration in private family disputes is not a victory for women’s rights. It is a capitulation to a campaign involving more than a hint of anti-immigrant and racist prejudice that tragically was spearheaded by many feminist organizations, the labour movement and the left as well as a few Canadian Muslim women.

As a result of this decision many women of religious persuasion, primarily women in immigrant communities, will be forced to resort to either costly court proceedings or private arrangements that will lack the legal protections proposed by a government-sponsored study in order to resolve disputes arising out of marriage breakdown.

Most organized religions have long had provision for deciding family issues involving such things as inheritance and custody through adjudication by authorities trained in the particular precepts of the religious belief. In Ontario, a number of religions began using the Arbitration Act in recent years to make such decisions enforceable by the courts.

The use of the Act by some Jews and adherents of other religions, including Christians, attracted little or no public criticism.

But the controversy over “sharia law” arose a couple of years ago when some Muslims proposed to likewise put their longstanding faith-based system of private religion-based mediation and arbitration under the Arbitration Act.

The proposal immediately came under fierce public attack. Many of the critics raised the spectre of “sharia” tribunals controlled by fundamentalist mullahs that would expose women to the laws of countries that condone stonings, beheadings, rules of evidence that give a woman’s testimony only half the weight of a man’s, etc.

There was a clear anti-Muslim edge to most of the attacks, which (among other things) failed to note the variations in the laws and customs of predominantly Islamic countries; “sharia” law was equated with Muslim fundamentalism, which was now, we were told, to be “imposed” on women of the Muslim faith.

The Ontario government reacted to these hyperbolic attacks by commissioning a review by Marion Boyd, a prominent feminist and former attorney-general and minister for women’s affairs in the province’s social-democratic NDP government of the early 1990s.

Boyd heard from close to 50 groups and conducted numerous interviews. Her 200-page report, released in December 2004, comprehensively canvassed the issues and proposed a number of amendments to the Act that would in her opinion enhance the quality of decision-making and ensure that parties to private arbitration of family law disputes (especially vulnerable women) would be apprised of their rights under Canadian law.

Here are some of her findings:

  • There is no evidence to suggest that women are being systematically discriminated against as a result of arbitration of family law issues.
  • Under arbitration, the parties choose their own law. But it may not be contrary to Ontario law.
  • Arbitration is subject to legal limits (it cannot address issues of criminal law or divorce law, nor the status of marriage or recognition of parenthood) and procedural limits (for example, the parties cannot opt out of judicial review on issues of jurisdiction, fraud, etc.).
  • Canadian Muslims already have a highly sophisticated and organized system of conciliation and arbitration that is available to practicing Muslims at their individual option.
  • Virtually all of those favouring religion-based mediation and arbitration advocated additional safeguards to prevent the kind of discrimination and inequity feared by opponents.

Boyd acknowledged that support obligations on Muslim men are “extremely limited in comparison to what is required by Canadian and Ontario law.” She framed recommendations to “ensure that arbitration decisions based on religious law do not disentitle spouses and children from the support provisions they are accorded under Canadian and Ontario law….”

In all, she came up with 46 recommendations. One was to add mediation agreements and arbitration agreements to the definition of “domestic contracts” already recognized in family law. These agreements, in writing, signed by the parties and witnessed, could be set aside by the courts on the same grounds as other domestic contracts, that is, if they did not reflect the best interests of children; a party did not have or waive independent legal advice; or no written decision with reasons was provided.

A number of proposals, if implemented, would have ensured that parties were adequately informed of their legal rights, including the right to independent legal advice.

Few of the critics of Boyd’s report addressed these specific recommendations. Instead, the underlying thrust of the attacks was to treat all Muslim customs and laws as primitive, barbaric, and misogynist. The critics were insistent that resort to religious precepts (especially Muslim!) must be prohibited in Canadian family law.

The Islamic community is one of many racially oppressed minority communities in Canada an imperialist country. In such circumstances, religious precepts often serve as a powerful means of self-identification and self-determination as an oppressed people, a key precondition to being able to combat their oppression. In this regard, it is analogous with the national question.

Most imperialist countries have developed definitions of citizenship based on homogenizing cultural concepts that deliberately exclude and discriminate against the immigrants and cultural minorities who make up an increasing share of their populations. England, once the colonial power par excellence, has categorically refused Muslim demands for a separate Sharia system for family law, but Muslims in the U.K. have developed an informal process that leaves them without the protection of British laws. Germany, with its blood basis of citizenship, excludes all of non-German origin other than children born in Germany.

France, with an assimilationist model of citizenship, allows no law other than secular state law to apply to its citizens. However, only one million of France’s four million Muslims are French citizens. So what family law applies to these non-citizen residents of France? The laws of the foreign resident’s country of origin or citizenship as interpreted by French judges! German judges do likewise.

Is it any wonder that in those countries many immigrants would want to evade the jurisdiction of the courts and rely simply on private adjudication of family law disputes?

For a variety of reasons that I need not go into here, Ontario seemed recently to be moving in a different direction, one that would make room for the beliefs of some minority communities while providing the more vulnerable members of those communities with greater recourse to the legal rights enjoyed by both citizens and non-citizens. As Boyd notes, a proposal by some Muslims to bring their faith-based private arbitration system under the Ontario arbitration legislation could be interpreted as “a desire [by the minority community] to engage with the broader community”. They were simply asking that their religion be accorded the same rights already enjoyed by others.

That open door has now been slammed shut by the Ontario government. In fact, the government put up no defence of the report it had commissioned. There was no debate in the legislature; the Conservatives and the NDP, like most Liberals, opposed Boyd’s recommendations.

I think those of us who want to build a new left that will encompass the most oppressed in this society need to rethink the lessons of this sorry episode. We need to be actively looking for ways to relate to these minority communities, many of them refugees from imperialist war and exploitation to express our solidarity with their campaigns against repression and to overlook religious differences that for many define their existence and are key to their own cultural or national self-determination.

You cannot combat religion by effectively outlawing it. The society we want to build is one in which human solidarity not repression and exclusion replaces the need for religion. Until that is achieved, we must accept that religion will for many continue to be a primary means of finding solace in a soul-less world.