Shariah based Arbitration is
Racist and Unconstitutional
Submissions by Muslim Canadian Congress:
Review of Arbitration Process by Marion Boyd
http://tinyurl.com/86dy8
The Muslim Canadian Congress is a national organization that provides a voice to progressive Muslims who are not represented by existing organizations. The Muslim Canadian Congress members reject organizations and a distorted view of Islam that is either sectarian, ethnocentric, authoritarian, and influenced by a fear of modernity.
Members of the Muslim Canadian Congress are proud of their Muslim heritage and the great contribution of Islam to human civilization. As Muslim Canadians, when it comes to rights and responsibilities, we believe in the Canadian Charter of Rights and Freedoms, and the Canadian constitution as our guiding principles.
The Muslim Canadian Congress is a secular organization that works to create a safe space and environment for all Muslims who are opposed to any form of theocracy. We believe in the separation of religion and state in all matters of public policy. We feel such a separation is a necessary prerequisite to building democratic societies. Societies where religious, ethnic, and racial minorities are accepted as equal citizens enjoying full dignity and human rights enunciated in the 1948 United
Nations Universal Declaration of Human Rights.
The Muslim Canadian Congress respectfully submits:
1. that the Arbitration Act does not cover family disputes being resolved within its parameters. Furthermore, that the Family Law Act and the other pieces of legislation covering family law jurisdiction are the sole, exclusive and comprehensive scheme for resolving all family law matters touching on relationships between spouses and their children, including estate and inheritances by spouses and children. It is therefore our position that none of these matters can be dealt with under the Arbitration Act.
2. that if indeed the government takes the position, as it seems to be doing, that the Arbitration Act can deal with these matters, then the MCC further takes the position that, to that extent, the Arbitration Act is unconstitutional and of no force and effect in that:
a. It breaches the rights contained in sections 2, 7, and 15 of the Canadian Charter of Rights and Freedoms as enunciated by the Supreme Court of Canada with respect to any differential treatment not specifically set out in the Constitution Act, 1867;
b. Breaches the unwritten constitutional norms enunciated by the Supreme Court of Canada in the Quebec Succession Reference namely the rule of law, constitutionalism, federalism, and respect for minorities;
c. Breaches even the common law rights to equality of citizenship as enunciated by the Supreme Court of Canada in Winner; and
d. Is otherwise repugnant to public policy in the de facto privatization of the legislative function and duty of parliament, which in fact, has been declared as unconstitutional as being the abandonment and abdication of the legislative function of parliament, as enunciated by the Supreme Court of Canada in Re Gray and further endorsed by the Supreme Court in Hallett and Carey.
3. In light of the fact that this Act exists and the Government states that there is such statutory and constitutional jurisdiction, and in light of the fact that MCC completely rejects and disagrees, we demand, on behalf of not only Muslim-Canadians, but all other Canadians who defend the rule of law and constitutionalism and equality, that the matter be referred on a reference to the Ontario Court of Appeal pursuant to section 8 of the Courts of Justice Act to determine:
a) Whether the Arbitration Act confers jurisdiction, outside the Family Law Act and other related family law statutes, to determine disputes of property, children, inheritance and estates in the family context.
b) If the Arbitration Act does confer such jurisdiction, whether it is constitutional.
4. With all due respect, if the Government maintains that the Act does confer such
jurisdiction, then these consultations are a charade as the Parliament has already spoken and any “report” or opinion to the Attorney General is just that: an opinion.
5. In practical and realistic terms, what began as a demand to introduce “Sharia Law” has now dishonestly mutated into the same thorn by any other name, and is still offensively unacceptable for the following reasons:
a) There is no such thing as a monolithic “Muslim Family/Personal Law” which is just an euphemistically racist way of saying that we will apply the equivalent to “Christian Law” or “Asian Law” or “African Law”;
b) It ghettoizes the Muslim community, which otherwise spans five different continents covering 1.3 billion people, in an extensive array of sects, languages, cultures, and customs, all into one second-class compartment in the determination of human and family law rights, which are of public importance and domain;
c) This insidious and discriminatory ghettoization and marginalization, into “out of sight” only plays into:
i) The hands of the extremist political and ideological agenda of a certain sector of Muslim-Canadian proponents of “Muslim Law” that is antithetical to the Canadian Constitution and values; and
ii) Equally into the hands of the reactionary, intolerant and otherwise racist segments of Canadian non-Muslim society who want nothing better than to exclude Muslims from the mainstream; all of this, behind the dishonest guise of religious tolerance and accommodation.
6. These practical and real objections are not only visible and apprehended by moderate Muslim Canadian members and voices, who adhere to the same rights and responsibilities of all other Canadians regardless of religion or race, but also highlight and focus the legal and constitutional repugnancy of these proposed measures.
7. In our respectful view, any public official body or institution that does not squarely and openly address the racism of these provisions and measures, is complicit in them.
8. Any “arbitration” system ought to be neutral and equally apply to any and all citizens regardless of race, religion, ethnicity, gender or sexual orientation. To have a system built on the exact opposite is to defile our Constitutional framework.
It would be extremely dishonest, and derelict of its responsibility for the government of the day to engage in this “consultation” and report with the public, and not refer it to the Court for validity, and expect groups such as the MCC to bring such a challenge.
In light of the above, MCC reiterates its demand that the Provincial Government refer the matter on a reference to the Ontario Court of Appeal pursuant to section 8 of the Courts of Justice Act.
All of which is respectfully submitted this 26th day of August 2004
Rocco Galati B.A., LL.B, LL.M
Counsel for the MCC
GALATI, RODRIGUES & ASSOCIATES
Barristers and Solicitors
637 College Street, Suite 203
Toronto, Ontario
June 12, 2005
June 11, 2005
Grand Mufti of Marseilles doubts Sharia suitable for Canadian society
Saturday, May 14, 2005 Page A17
Muslim law cleric doubts sharia
suitable for Canadian society
By ESTANISLAO OZIEWICZ
Globe and Mail
http://tinyurl.com/794pn
The grand mufti of Marseilles is adding his voice to those opposed to applying religious laws in family matters, a practice Ontario is proposing to extend to Muslims in the province.
Soheib Bencheikh, an Algerian Muslim cleric who is also the highest official of religious law for Marseilles, said yesterday that sharia, or traditional Islamic law, incorporates both spiritual and judicial concepts developed exclusively by men centuries ago and that are subject to interpretation.
He said they may not apply to contemporary Canadian society.
"Is it possible to apply the sharia in societies that are governed by constitutions that stand for gender equality?" asked Mr. Bencheikh, who supports France's prohibition of religious symbols in schools. "It's illogical to apply today the precepts conceived [in tribal, patriarchal societies] to safeguard the interests of yesterday."
Ontario's proposal to create an Islamic arbitration system -- similar to those that exist for Jews and Ismailis -- to settle family and inheritance disputes has been attacked by some Canadian Muslim women's groups, which argue that women would be coerced and lose rights afforded them under Canadian law.
Mr. Bencheikh was speaking by telephone from Montreal, where he was attending a conference organized by Rights & Democracy, an organization created by Parliament in 1988 to promote human rights and democracy around the world. The conference is exploring religious fundamentalism and its growing threat to human rights.
Rights & Democracy has denounced Ontario's move to faith-based arbitration of family matters. President Jean-Louis Roy recently wrote to Attorney-General Michael Bryant, saying that such arbitration has the effect of privatizing family law by creating a parallel system that allows the religious, cultural and political elites that organize the dispute-settlement procedures to decide on the applicable law.
With the support of the Canadian Council of Muslim Women and the National Association of Women and the Law, Mr. Roy argues that many religions can be interpreted as incorporating a gender bias to the disadvantage of women's equality rights.
"[This] could very realistically result in discrimination against women," he said.
Ziba Mir-Hosseini, of the international coalition Women Living under Muslim Law, said there are two current trends in interpreting Islamic family law: one is authoritarian, retrograde, patriarchal and detrimental to women's rights, and the other is progressive and acknowledges women's rights.
She says that if Ontario were to approve the application of Islamic law through arbitration panels, it could be seen outside Canada as favouring the authoritarian trend.
Mr. Bencheikh said that applying sharia in provincial arbitration panels also runs the risk of putting Islam in a bad light and creating divisions among people rather than bringing them together.
Rights & Democracy says that while it recognizes the right to religious freedom includes the right to participate in religious processes to resolve family disputes, Canada must not allow this to override its obligation to eliminate violence and discrimination against women.
Muslim law cleric doubts sharia
suitable for Canadian society
By ESTANISLAO OZIEWICZ
Globe and Mail
http://tinyurl.com/794pn
The grand mufti of Marseilles is adding his voice to those opposed to applying religious laws in family matters, a practice Ontario is proposing to extend to Muslims in the province.
Soheib Bencheikh, an Algerian Muslim cleric who is also the highest official of religious law for Marseilles, said yesterday that sharia, or traditional Islamic law, incorporates both spiritual and judicial concepts developed exclusively by men centuries ago and that are subject to interpretation.
He said they may not apply to contemporary Canadian society.
"Is it possible to apply the sharia in societies that are governed by constitutions that stand for gender equality?" asked Mr. Bencheikh, who supports France's prohibition of religious symbols in schools. "It's illogical to apply today the precepts conceived [in tribal, patriarchal societies] to safeguard the interests of yesterday."
Ontario's proposal to create an Islamic arbitration system -- similar to those that exist for Jews and Ismailis -- to settle family and inheritance disputes has been attacked by some Canadian Muslim women's groups, which argue that women would be coerced and lose rights afforded them under Canadian law.
Mr. Bencheikh was speaking by telephone from Montreal, where he was attending a conference organized by Rights & Democracy, an organization created by Parliament in 1988 to promote human rights and democracy around the world. The conference is exploring religious fundamentalism and its growing threat to human rights.
Rights & Democracy has denounced Ontario's move to faith-based arbitration of family matters. President Jean-Louis Roy recently wrote to Attorney-General Michael Bryant, saying that such arbitration has the effect of privatizing family law by creating a parallel system that allows the religious, cultural and political elites that organize the dispute-settlement procedures to decide on the applicable law.
With the support of the Canadian Council of Muslim Women and the National Association of Women and the Law, Mr. Roy argues that many religions can be interpreted as incorporating a gender bias to the disadvantage of women's equality rights.
"[This] could very realistically result in discrimination against women," he said.
Ziba Mir-Hosseini, of the international coalition Women Living under Muslim Law, said there are two current trends in interpreting Islamic family law: one is authoritarian, retrograde, patriarchal and detrimental to women's rights, and the other is progressive and acknowledges women's rights.
She says that if Ontario were to approve the application of Islamic law through arbitration panels, it could be seen outside Canada as favouring the authoritarian trend.
Mr. Bencheikh said that applying sharia in provincial arbitration panels also runs the risk of putting Islam in a bad light and creating divisions among people rather than bringing them together.
Rights & Democracy says that while it recognizes the right to religious freedom includes the right to participate in religious processes to resolve family disputes, Canada must not allow this to override its obligation to eliminate violence and discrimination against women.
Canadian Unitarians urge Government to ensure "seperation of church and state"
The Honourable Dalton McGuinty,
Premier of Ontario
Rm 281, Main Legislative Building
Queen’s Park
Toronto ON M7A 1A4
The Honourable Michael Bryant
Attorney General of Ontario
The Honourable Sandra Pupatello,
Minister of Community and Social Services
Dear Premier and Ministers,
It is of critical concern to Canadian Unitarians for Social Justice that Family Law be excluded from the Arbitration Act. We are opposed to the recommendation of the Marion Boyd Report because of the devastating psychological effect that faith-based arbitration could have on women in some religious communities, thereby compromising their rights under the Canadian Charter of Rights and Freedoms. The psychological damage and ostracism that women in those faith communities may experience could be far more harmful than the physical abuse that the Report considered.
The cultural norm of many religions is hierarchical. We believe that women members of such religions who oppose the opinions of the male heirarchy may be banished from their cultural group, and left without a support network. The human rights of these women will be in jeopardy unless Family Law is excluded from the Arbitration Act. We believe that no religious law should be a part of our justice system.
In considering the Boyd Report, balanced representation between those who support faith-based arbitration and those who are opposed to it is difficult to achieve because those who would be victimized by the arbitration will fear being victimized if they oppose its adoption by the Government of Ontario.
We urge you to find other ways of coping with the case load and the financial burdens of our judicial system. Compromising the human rights of some individuals is not an acceptable method of solving these problems. According to Professor J-F. Gaudreault-DesBiens of te University of Toronto Faculty of Law, “Those who support private abitration as an efficient and relatively cheap mechanism for esolving disputes should consider that abuses of fundamental rights committed in arbitration contexts are likely to undermine the legitimacy of arbitration itself as an alternative dispute mechanism.”1
We are concerned that faith-based laws do not always agree with the laws of Canada and of Ontario. For equality before the law--a primary right of Canadians--it is essential that all decisions be based on the same body of laws. We exhort you to ensure the separation of church and state in our legal system.
We urge you to oppose the section of the Boyd Report that would allow family law to be included in the Arbitration Act. Quebec did this. Let Ontario do so as well! Then may it be said that Ontario recognizes that the Charter of Rights and Freedoms applies equally to all people!
Yours truly
Philip Symons
President
Footnote: 1. Jean-Francois Gaudreault-DesBiens, “Perspectives: The Limits of Private Justice? The Problems of the State Recognition of Arbitral Awards in Family and Personal Status Disputes in Ontario”, World Arbitration & Mediation Report, January 2005, Vol. 16, No. 1, p.26.
Premier of Ontario
Rm 281, Main Legislative Building
Queen’s Park
Toronto ON M7A 1A4
The Honourable Michael Bryant
Attorney General of Ontario
The Honourable Sandra Pupatello,
Minister of Community and Social Services
Dear Premier and Ministers,
It is of critical concern to Canadian Unitarians for Social Justice that Family Law be excluded from the Arbitration Act. We are opposed to the recommendation of the Marion Boyd Report because of the devastating psychological effect that faith-based arbitration could have on women in some religious communities, thereby compromising their rights under the Canadian Charter of Rights and Freedoms. The psychological damage and ostracism that women in those faith communities may experience could be far more harmful than the physical abuse that the Report considered.
The cultural norm of many religions is hierarchical. We believe that women members of such religions who oppose the opinions of the male heirarchy may be banished from their cultural group, and left without a support network. The human rights of these women will be in jeopardy unless Family Law is excluded from the Arbitration Act. We believe that no religious law should be a part of our justice system.
In considering the Boyd Report, balanced representation between those who support faith-based arbitration and those who are opposed to it is difficult to achieve because those who would be victimized by the arbitration will fear being victimized if they oppose its adoption by the Government of Ontario.
We urge you to find other ways of coping with the case load and the financial burdens of our judicial system. Compromising the human rights of some individuals is not an acceptable method of solving these problems. According to Professor J-F. Gaudreault-DesBiens of te University of Toronto Faculty of Law, “Those who support private abitration as an efficient and relatively cheap mechanism for esolving disputes should consider that abuses of fundamental rights committed in arbitration contexts are likely to undermine the legitimacy of arbitration itself as an alternative dispute mechanism.”1
We are concerned that faith-based laws do not always agree with the laws of Canada and of Ontario. For equality before the law--a primary right of Canadians--it is essential that all decisions be based on the same body of laws. We exhort you to ensure the separation of church and state in our legal system.
We urge you to oppose the section of the Boyd Report that would allow family law to be included in the Arbitration Act. Quebec did this. Let Ontario do so as well! Then may it be said that Ontario recognizes that the Charter of Rights and Freedoms applies equally to all people!
Yours truly
Philip Symons
President
Footnote: 1. Jean-Francois Gaudreault-DesBiens, “Perspectives: The Limits of Private Justice? The Problems of the State Recognition of Arbitral Awards in Family and Personal Status Disputes in Ontario”, World Arbitration & Mediation Report, January 2005, Vol. 16, No. 1, p.26.
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