هنئونا انتصار جديد على قوى الظلام في ولاياتنا ONTARIO !!!!

Quote: HomeMagazineOur PoliticsNSG DocumentsContact UsTheory ResourcesLinks SHARIA LAW: Religious arbitration and the privatization of law An interview with Amina Sherazee by Neil Braganza On January 17th, 2005, former Ontario Attorney General Marion Boyd recommended that the province of Ontario allow religious law-such as Muslim law, also known as “sharia”-to be used in private arbitration to settle commercial and family disputes if parties agree to it. Private arbitration is toted as a wonderful voluntary alternative to the public court system. Boyd’s report examining the question of religious arbitration was commissioned by current Attorney General Michael Bryant. NEIL BRAGANZA interviewed Toronto lawyer and human rights activist AMINA SHERAZEE for New Socialist on March 23rd, 2005. Neil Braganza: What would sharia arbitration in Ontario involve? How would it work? Amina Sherazee: To be honest, I don’t think sharia arbitration is workable. There is a lot of ambiguity and uncertainty as to how it would be implemented, monitored and applied. The proposal is that sharia arbitration involve informal forums adjudicated by qualified arbitrators who are members of arbitration societies and have some training in arbitration principles (though not necessarily formal legal training). Arbitrators, of course, would also have to have some awareness of sharia law. Now it is important to point out that there are different schools of thought in Islam. There are different interpretations of the various tenets of sharia by various Muslims communities. There are different religious sects, with different religious precepts, and all this is complicated by different cultural interpretations of those religious precepts. There is no one universal codified Muslim law because the laws vary according to different schools of thought. There are the Shias, the Sunnis and the different branches of Sunnism and Shiaism. Nevertheless, the proponents of sharia arbitration are proposing that it involve the arbitration of family law matters, and inheritance matters, and of course commercial arbitration. NB: Why do people, especially those in Muslim communities, oppose the idea of sharia civil arbitration? What is the concern about the impact it might have on women? AS: The organizations I represent and am familiar with are not opposed to the use of sharia law for commercial arbitration. They have no problem with two parties who share commercial interests and who are more or less equal using sharia law to settle commercial disputes. However, there is a problem with using religious arbitration to deal with what should properly be seen as public and social issues. For example, though the regulations of family law, child welfare, inheritance rights and so on all relate to property rights and disputes between private citizens, those disputes-for instance, disputes over the division of property and support for ex-spouses and children, the feminization of poverty and the best interest of children-concern and impact on the public at large. In our society, we try to regulate these issues through law because it is widely recognized that these issues have an impact on the public and on how we relate to one another. People in Muslim communities who are opposed to sharia arbitration don’t want these public issues to become privatized. Rather, they understand and appreciate that aside from the law there are social relationships between people that determine how (or whether) legal rights are exercised. These relationships-for example, gender inequality, or inequalities of economic and financial power-are public issues and problems because they cut across all cultural and religious communities. We don’t want people-who more likely than not will be women-being put in the position of having to bargain away their rights just to acquire a standard of living for themselves and their children. Now, because we are dealing with sharia we have to look at the occurrence of these inequalities within Muslim societies. There have been very conservative interpretations of sharia, and there is no way to monitor the prevalence of such interpretations in arbitration hearings. For this reason sharia arbitration can have a very adverse impact on women. Plus, because Muslim women often face cultural and linguistic barriers, threats of stigmatization and pressures of assimilation-all made worse by their economic inequality-there is no reliable way to guarantee that women’s legal rights will be protected in sharia arbitration hearings. Another reason for opposing sharia is that it undermines the rule of law and that it is a move to establish a different set of laws for Canadians in the Muslim communities. This raises major questions about the marginalization and segregation of Muslims from the rest of society. So the concerns are twofold. The first concern is how inequality is going to play out in perpetuating discrimination within Muslim communities. The second concern is that the different application of different laws is going to ghettoize and exclude Muslims from the rest of society. NB: In your opinion, why is the Canadian government considering this now, and whose interests would be served with the introduction of sharia arbitration? AS: The Ontario government is dealing with it now because there was a lot of media controversy after the Islamic Civil Institute announced that it was already using sharia law in binding arbitration of family disputes. The announcement came as a surprise to many of us. People started asking why this is being allowed and why this is occurring. The proponents of sharia responded by saying that religious arbitration was permitted under the Arbitration Act. Opponents to sharia disputed this, arguing that there is nothing in the Act that allows people to use sharia in family law and child welfare matters. Furthermore, opponents charged that it is very problematic that groups are claiming that the right to religious arbitration is a given. This whole debate probably would not have happened if the issue did not receive the profile it did in the media. The second part of your question asks whose interests are served by introducing sharia. There are two main interests that are served. First, sharia arbitration serves the interests of the elite within the Muslim communities in that it gives them a way to determine property matters to their benefit. Some sharia law can be construed to serve the interests of men over women because it can be read to stipulate, for instance, that a woman is only entitled to a quarter of the inheritance that a male heir is entitled to. Furthermore, some rules around custody and child and spousal support payments and support rights are very much in favour of men. So it serves the interests of the patriarchal economic elite. Second, I think that sharia law to a great extent serves the interests of the government. Religious arbitration is a way for the government to offload many of the services it should be providing to make the legal system more relevant, responsive and accessible to religious, cultural and racial communities. To properly remedy the lack of legal services, the government would have to do a complete overhaul of the legal system: it would have to make the judiciary more representative, it would have to provide interpretation and cultural services, it would have to incorporate the values of litigants into both legal procedure and some of the law itself, and so on. Religious arbitration is a great way for the Ontario government to avoid these responsibilities by claiming that groups can just regulate themselves on their own and meet their own needs. This frees the government to narrow its focus to the dominant cultures of society while claiming that special minority groups are both marginal to public interest and an unnecessary financial strain on the system. In other words, religious arbitration is about the privatization of law and the privatization of legal services. Furthermore, it’s about not having to address the current inequality and discrimination that exists within the legal system. For instance, if you look at the judiciary on the federal level you’ll see that there is isn’t a single person of colour who is a judge-not one! In the provincial courts in Ontario it was not until 1989 (yes, 1989!) that we had the first black judge. I just read in the news that by the year 2017 visible minorities are going to be the visible majority. But if that’s the case then the composition of the judiciary should be reflecting that reality. Establishing sharia arbitration is a way for the government to avoid dealing with racism and exclusion in the legal system. Now, proponents of religious arbitration claim it is less expensive and more accessible. But that’s only because legal aid has been eroded by underfunding. When proponents romanticize religious arbitration as being cheaper and more informal, their argument relies on the fact that the current legal system is in disrepair. For example, proponents claim that a husband and wife can duke it out in an arbitration court in front of an arbitrator who charges them very little money or no money at all, and that this will be a quick, easy and cheap way for the couple to settle their dispute. But at the same time, proponents claim that if you don’t have arbitration, you’ll have to get a lawyer, go through a completely inaccessible court system, suffer long delays, pay for your own lawyer and so forth. Thus, there’s a lot of scaremongering used to sell religious arbitration to communities. Furthermore, this plays on and reinforces the problems because it accepts a completely racist, classist and inaccessible legal system. Rather than taking up the larger task of making the legal system more accessible and less discriminatory and racist, proponents of religious arbitration are offering people a way to accommodate these inequalities and live with them. These inequalities exist because the government has abdicated its responsibility to properly fund legal aid. Proponents of sharia are trying to push litigants into the private resolution of their disputes, and the government is trying to get out of the business of governance and permit the privatization of resolving family breakdown. NB: How would you make sense of the move to introduce sharia law in the context of the general crackdown on Muslims since September 11th, 2001? AS: I think it’s a further marginalization and a further exclusion of that community from services and legal entitlements. The way Muslims are being treated by the courts is a by-product of the racial exclusion that Muslims have faced historically. The indefinite incarceration of Muslims under the draconian security certificate process, the routine violation of their due process rights and the fact that there are no Muslims in the federal judiciary-these are all examples of the systemic marginalization and exclusion of Muslims. Sharia arbitration is part of this pattern because it is a way for the government to acknowledge these problems but at the same time transfer the responsibility for solving these problems from itself to Muslim communities. It is important to trace out how the government is contradicting itself here. Marion Boyd’s report recommends that sharia law be allowed because, in general, religious arbitration should be allowed. But if you look at her actual recommendations, they not only interpret the law as it is, but propose to change the law. For example, there are recommendations for many amendments to the Family Law Act, the Arbitration Act, and to the Child Law Reform Act. So the question is: if the Ontario government needs to amend the law to make religious arbitration legal, why is it allowing religious arbitration to happen right now? Doesn’t this mean that the religious arbitration that is happening today in Ontario is happening illegally? And if it is happening illegally, how can anyone claim that it has any legitimacy? The answer to this last question raises more issues. When the groups I represent were invited to give deputations to Marion Boyd, we were informed that when she was the Attorney General at the time that the Arbitration Act was passed in 1991, she intended for it to apply to family arbitration. Why? Because she claimed Jewish leaders had lobbied her to permit religious arbitration. However, nowhere in the legislation is this clearly reflected.The sharia law debate is exposing all this back-room wheeling and dealing. And now, the people who were not part of those deals are demanding that the process be made more open and democratic. Rather than allowing Boyd-who is now a private consultant-to interpret the law in response to people who happen to have her ear, the government should be saying that religious arbitration is illegal until the proper process is followed to make it legal. After all, despite Boyd’s willingness to respond to whatever voice manages to lobby her, as it stands now there is nothing in the Arbitration Act that says that religious-based arbitration is allowed, and her report confirms that. The position of the Muslim groups opposed to sharia is that we would like a statement from the Attorney General saying that what’s happening right now is illegal and it should be prohibited. And if supporters of religious arbitration want it to be sanctioned and made legal, then there has to be a proper legislative debate on the issue. In a way, Marion Boyd’s report usurps parliamentary process. What is supposed to happen is that a parliamentary committee studies a law and creates a bill. The bill is supposed to be debated within the committee, and the committee is supposed to receive and incorporate submissions from the public. The bill is then supposed to be debated in parliament, and if it passes third reading it becomes law. But instead of striking up a parliamentary committee, the government hired a private consultant (Boyd). The Boyd report is thus a sneaky way to undermine public debate on laws before they are enacted. So, not only does the content of the Boyd report represent, effectively, a call to privatize legal services, but the very manner in which that report was commissioned and produced represents a move to privatize parliamentary procedure. What we are seeing is the privatization of government and the privatization of legal services and justice. I think that is the biggest concern around religious arbitration. And clearly this should not just be the concern of the Muslim community but the concern of all. NB: What would the government have to fear from broader consultation? AS: The government wants to avoid a much needed overhaul of the legal system. Those who support religious arbitration and Boyd’s usurpation of parliamentary process isolate the debate and try to make it very insular. But the truth is that the issue has implication for general law. Keeping the issue insular prevents us from asking why our legal system doesn’t reflect the needs and concerns of various groups in this province. It prevents us from asking how we could change the system for the better, or asking about an entirely different system. That deeper conversation would involve everyone. Even non-Muslims would be involved in the debate. But if it is framed as a “sharia law” debate then a broader discussion suddenly becomes unnecessary. Furthermore, by hiring a private consultant to study what is framed as a very private and narrow issue, what the Attorney General is doing is in fact allowing the dominant members of certain groups to petition that consultant and influence her. After all, who are the most vocal? The most vocal are the most organized, and the most organized are the most financially capable. So that’s another big problem with this process. It’s keeping a lid on the Pandora’s box instead of opening the Pandora’s box in a very public and democratic manner and actually dealing with what comes out of it. NB: Any last thoughts? AS: The reason I don’t think we should have religious-based arbitration is that we need one law to apply to everyone. The only way to accommodate different values and different religions is to do so within the one publicly funded and controlled legal and judicial system, not by creating substandard procedures and systems for different groups. Creating sub-systems of adjudication ghettoizes and marginalizes those who are already marginalized. It not only segregates a community, it contributes to the further marginalization of people who are already marginalized within that community. This moves them farther away from the public eye and makes it more difficult for them to fight back to reclaim their rights. So, religious arbitration establishes a very dangerous slippery slope towards the privatization of public matters. Its proponents use the concept of “multiculturalism” as a justification to segregate people and give them a different standard by which they will be judged. That’s not multiculturalism. Real multiculturalism means integrating the margin into the centre. I think that the philosophy behind Marion Boyd’s report is that groups should have “equal but different” treatment. But, as Martin Luther King has informed us, the principle of “equal but different” is precisely the rhetoric used to justify segregation. Rather than isolation and exclusion from the mainstream, we need desegregation and incorporation into the mainstream. Amina Sherazee is a staff lawyer at Downtown Legal Services in Toronto and a human rights activist. Neil Braganza is a member of CUPE 3903 at York University and a member of the New Socialist Group. New Socialist Issue #51 – May/June 2005