The head of Canada's Ontario province has rejected attempts to allow Muslims to use Sharia law in family disputes.
A report by Ontario's former attorney general Marion Boyd had recommended the use of Islamic law to settle issues such as divorce and child custody.
But Premier Dalton McGuinty ruled against the move, saying there should be "one law for all Ontarians".
quote:
Mr McGuinty said he would introduce "as soon as possible" a law banning all religious arbitration in the province.
Ontario has allowed Catholic and Jewish faith-based tribunals to resolve family disputes on a voluntary basis since 1991.
Mr McGuinty, who had been studying Ms Boyd's report since last December, said he was concerned religious family courts could "threaten our common ground".
He told the Canadian Press news agency: "There will be no Sharia law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians."
On the surface, it sounds like good news to me. Everyone knows that Sharia is barbaric. Examples abound of atrocities being committed in its name.
But what about the 'one law for all Ontarians'? That impacts all the good religions.
Hard to say whether this is a good thing or not, though I am inclined to say that it is.
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Good religions? I'm glad he didn't say that. If you're going to ban it for one, you've got to ban it for all. And vice versa.
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*sigh* Sharia refers to Islamic legal practice more widely than just cutting off the hands of thieves. It is not, of necessity, barbaric, however it has been interpreted in a barbaric way. Sharia, if limited to divorce and family law, would be very different to the current law in Ontario (eg child custody usually goes to the father under Sharia law) but not necessarily harsher or less respectful of the rights of each party. Still, with the potential for abuse I think this is overall a good decision.
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Sharia means different things to different people. A billion or so don't think it barbaric at all.
Funny how it was okay for the Christians and Jews but time to change when the Moslems use the same system.
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If all arbitration (not just religious) is banned, then I might support this.
However, it seems to me that two people have the right to agree to settle a dispute outside the legal system. Interfering with that right abrogates the freedom of both parties.
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quote: Funny how it was okay for the Christians and Jews but time to change when the Moslems use the same system.
Right. Everyone knows they're good and Islam is bad.
It seems a shame that the good religions have to suffer because the bad one wants to horn in and do stuff, too.
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Additional thought, though: Custody of children is not merely a matter of private agreement. I would require court oversight before agreeing to arbitration (to be reasonably sure there is no coercion) and court ratification of any custody agreement, using a best interest of the child standard.
For purely interpersonal disputes (childless couples, etc.), I would hesitate to allow much interference beyond ensuring no coercion.
Posts: 26071 | Registered: Oct 2003
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In something like a divorce, if both parties agree to decide it according to their religious law, I don't see why the state should step in and say it has to be decided differently. The key part being "if they both agree."
I don't know anything about the particulars of Sharia law. "One law for all Ontarians" is fine, but if people can settle something peacefully without Ontario's arbitration and the involved parties are okay with the decision, that shouldn't have to involve the law.
--Enigmatic
Edit: In the time it took me to put my thoughts into words, Dag has already summed them up better, including the exception for child custody which I forgot to mention.
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Well, no arbitration could violate criminal law so penalties for divorce theoretically couldn't include death like in some jurisdictions in Pakistan. However, every city in Canada has had murders of Moslem women as someone's version of sharia is enforced regardless of the real law.
Presumably, you wouldn't agree to death as a valid penalty for infidelity even if the woman had agreed to the procedings.
Why then agree to the principle that someone can apply the Will of God to any legal matter, even if the penalties technically fall within the broader legal system like granting custody of children to one parent over another.
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quote:Why then agree to the principle that someone can apply the Will of God to any legal matter, even if the penalties technically fall within the broader legal system like granting custody of children to one parent over another.
Because we generally hold that people have the right to decide how their disputes are decided. With the caveats I've already stated regarding custody, I think this right is one most people would support. Submitting to binding arbitration, absent coercion, is an exercise in personal freedom. There needs to be a good reason to deny that freedom.
The religious nature of the chosen decision framework is not a good reason for such a denial. A jurisdiction that allows voluntary agreement to binding arbitration by a third party selected by the disputants would be discriminatory if it excluded religious authorities from those that may be chosen.
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Sharia is inherently "unequal or unfair [in] treatment of parties." eg It is perfectly acceptable to murder someone, as long as you're wealthy enough to bribe the head of the victim's family.
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We do not hold that people have the RIGHT to decide their disputes. Shall we duel?
We resolve disputes according to law. If the law provides an option to arbitrate, it can also withdraw that option. Like they are doing in Ontario.
Of course, discrimination on the basis of religion would be unconstitutional, but the court would not obliged to accept an applicant because of religious standing either.
The problem with religion in law is exactly the coercion caveat. Religious leaders are given moral authority by their constituents. Asking a woman if she will accept arbitration from a moral authority is implicitly coercive.
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quote:We do not hold that people have the RIGHT to decide their disputes.
Actually, we do. In general, we do not compel people to submit their disputes to the court.
quote:Shall we duel?
We do not allow people to do things to resolve disputes if the thing being done is not legal.
Is shooting another person when one has placed onself purposely in danger of death by that person's hand illegal? Yes.
Is going to a religious authority selected by both parties and choosing to respect that judgment illegal? No.
quote:If the law provides an option to arbitrate, it can also withdraw that option.
Then it needs to withdraw all arbitration options. And there is a clear trend in both Canada and the U.S. to move towards allowing and encouraging arbitration.
quote:Of course, discrimination on the basis of religion would be unconstitutional, but the court would not obliged to accept an applicant because of religious standing either.
But if the court allows secular arbitration, it needs to allow religious arbitration as well.
quote:Religious leaders are given moral authority by their constituents. Asking a woman if she will accept arbitration from a moral authority is implicitly coercive.
How patronizing of you. It's a good thing you're here to protect those silly muslim women from their own faith.
Posts: 26071 | Registered: Oct 2003
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We compel people to resolve their disputes lawfully. If arbitration is deemed lawful, so be it. If it is declared unlawful, you have no constitutional right to demand it.
Is going to a religious authority selected by both parties and choosing to respect that judgment illegal? In Ontario it will be. In jurisdictions it is allowed it will not. See paragraph one.
The law can and will choose which conditions it will accept arbitration, again providing for constitionality. Specifically, in Ontario the concept of arbitration will not be abolished. Nothing about allowing secular arbitration will require allowing religious arbitration too. Maybe you are arguing about how things should be, but I am tell you how they are.
I am being patronizing, but not to any Moslems. I don't know how to say stuff much plainer to you. And calling me names does not make the point go away. The woman was an example, appropriate to this discussion. The point is moral authority. Someone in a position of moral authority over you is in flagrant conflict of interest asking if they can arbitrate your dispute. That moral authority is implicitly coercive.
quote:We compel people to resolve their disputes lawfully. If arbitration is deemed lawful, so be it. If it is declared unlawful, you have no constitutional right to demand it.
A.) Something can be constitutional and still be wrong.
B.) We do not, in fact, require people to resolve their disputes lawfully. We require them to not resolve them unlawfully. The difference is subtle but important. If someone wants to make it illegal for two people to go to a third party to arbitrate their dispute, they ought to have a good reason for interfering with personal liberty in that way. All you have done is say, "They can to prohibit it." You have not given any reasons why it's a good idea to actually infringe on personal liberty in that fashion.
quote:Someone in a position of moral authority over you is in flagrant conflict of interest asking if they can arbitrate your dispute.
Someone without moral authority has no business arbitrating anything. That moral authority can come from commercial disinterest and professional reputation - this is where commercial arbitrators derive their moral auhtority - or it can come from deep study of the moral foundation subscribed to by the parties choosing to go to them for arbitration. This could be a deep study of the Talmud, of the Koran, of the Bible, of Ayn Rand, or anything else the parties decide.
Arbitration is an inherent part of the right to contract. Even if it's not binding, there should be no requirement by the government that two people with a dispute must go to court to solve it.
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The fears behind Sharia arbitration are that Muslim men are intrinsically favoured by it. That a Muslim an could use Sharia and religious obligation to settle the dispute in his favour. Sharia IS different than the Catholic or Jewish faith-based arbitration systems. The potential for abuse is/was huge. Not all Muslim men would use Sharia to wrangle an unfair arbitration against their wives, hopefully the majority, but the potential was great enough that the most vocal and passionate anti-Sharia activists are Muslim women.
Until the Canadian Muslim women got involved, Sharia was a likely prospect in Ontario. Muslim women from all over the world formed the Internation Muslim Women Against Sharia in Ontario. That's how big a deal this was to them.
I myself am a bit sad that Catholic and Jewish faith-based arbitration is lost in this as well, but I'm glad to give up that privilage if it means that Muslim women in Ontario get to keep their rights.
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