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Toronto Star Columnist: Religious arbitration is "recipe for discrimination"

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  • Tarek Fatah
    Dec. 28, 2004. 01:00 AM Courts must have final say on arbitration By THOMAS WALKOM The Toronto Star http://tinyurl.com/698oz Former Attorney General Marion
    Message 1 of 1 , Dec 29, 2004
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      Dec. 28, 2004. 01:00 AM

      Courts must have final say on arbitration

      By THOMAS WALKOM
      The Toronto Star
      http://tinyurl.com/698oz

      Former Attorney General Marion Boyd's report on the use of Islamic law in
      Ontario has drawn considerable flak. Much of the reaction is ill-considered;
      some verges on hysteria. To some, the very idea of Islamic arbitrators
      solving civil disputes produces images of faithless wives being stoned.

      In fact, a few Islamic "courts" already exist in Ontario and no one has been
      stoned yet. As well, other groups — particularly Orthodox and Conservative
      Jews — take advantage of Ontario's broadly written arbitration act to use
      their own religious rulings in civil disputes and to ensure that these
      rulings are legally enforced.

      In effect, Boyd is asking: What's wrong with all Muslims doing the same
      thing?

      Phrased that way, few can disagree. But the real issue has nothing to do
      with Muslims. Rather it has to do with a more fundamental question: Should
      different kinds of people living in the same province be governed by
      different kinds of laws?

      The philosophy behind arbitration is laudable. Many private issues can be
      solved outside the courts. Ontario's 1991 Arbitration Act (passed when Boyd
      was minister responsible for women's issues in Bob Rae's New Democratic
      Party government) is built on this notion.

      Its essence is this: In certain civil and family law disputes, disputants
      are permitted to settle matters under any set of laws they wish. If they
      want to use Roman Catholic canon law, that's fine. If they want to use
      Togo's commercial law, that's fine too.

      There are two main restrictions. First, both sides must agree to the set of
      rules they choose to be bound by. Second, the arbitrator's remedy cannot be
      illegal in terms of Ontario secular law.

      Hence, no stoning.

      The key to the 1991 act, however, is that once delivered, a ruling is
      legally binding. Even if it is based on laws that have no status in Ontario,
      it is enforceable in Ontario courts.

      For commercial disputes, this poses little problem. Family disputes,
      however, particularly those involving divorce, child custody and support
      payments, are trickier.

      When passed in 1991, the act attracted little attention. Religious groups
      have long made use of religious law. But most disputes, such as annulments
      or religious divorces, are handled outside the act and are thus legally
      unenforceable.

      A Catholic denied an annulment under canon law may still receive a secular
      divorce.

      Jewish rabbinical courts make greater use of the act, Boyd writes. But even
      here, the numbers are small. In only about 30 cases a year do rabbinical
      courts issue edicts (usually on matters of property division and custody)
      that require secular court enforcement.

      Islam's Ismaili sect has long had an organized arbitration system. And a
      Toronto Sunni mosque has operated tribunals based on Islamic law since 1982.

      Given all of this, what's the problem?

      Quite a bit, say some Muslims. Indeed, it has been the complaints of the
      faithful that have fired this controversy, not the prejudices of the
      ignorant. Both the Canadian Council of Muslim Women and the Muslim Canadian
      Congress have come out strongly against giving state sanction to Islamic
      rulings in family matters. As practised, they say, these rulings tend to be
      fundamentally unfair to women.

      These critics argue that Muslim women will be under tremendous pressure to
      accept Islamic court rulings even though, technically, they need not do so.

      Boyd's response is that informal Islamic courts already make judgments, some
      of which are contrary to Canadian law (she cites cases of underage girls
      being forced to marry). Better to regularize matters by bringing these
      courts under the general umbrella of the Arbitration Act, she says.

      To this end, she recommends keeping the principle of religious courts but
      strengthening the Arbitration Act to ensure that all are treated fairly. For
      those who insist that religious rules must carry secular legal weight, this
      makes sense. For the rest of us though, it does not.

      Boyd's report envisions a world in which people carry their own laws (she
      calls them personal laws) wherever they go. In her view, an immigrant to
      Canada is subject to both Canadian law and — if he wishes — to certain laws
      of his native land.

      At a fuzzy, theoretical level, this may seem fair. Practically, however, it
      is a recipe for discrimination.

      The Ontario government cannot ban Muslims from using the Arbitration Act.
      That in itself would be discriminatory. But it can follow Quebec's lead by
      amending the act to ensure that, in family matters at least, all religious
      tribunals confine themselves to mediation and give secular courts the final
      say.

      No one disputes that different people have different traditions. But laws
      are not the same as traditions. Laws are the expression of the broadest
      community.

      Salvation may come from God. In democracies, laws come from the people.

      They should be made by duly elected legislatures. In the final instance,
      they should be interpreted and judged by the courts those legislatures set
      up.
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