Canada: Support Women’s Struggle Against Adoption Of Shari’a Or Any Other Religious Law Into Ontario Arbitration Courts

FORWARDED ACTION ALERT FROM WOMEN LIVING UNDER MUSLIM LAWS

The International Gay and Lesbian Human Rights Commission joins Women Living Under Muslim Laws, the National Association of Women and the Law, the Canadian Council of Muslim Women (CCMW), the National Organization of Immigrant and Visible Minority Women of Canada (NOIVMWC), the Metropolitan Action Committee on Violence Against Women and Children (METRAC), The National Council of Women of Canada (NCWC), Rights and Democracy, and Y of Toronto out of concern for the application of any religious laws in family matters using the Arbitration Act in Ontario, pursuant to Marion Boyd's report entitled “Protecting Choice, Promoting Inclusion.”

FROM WLUML

Notwithstanding Ms. Boyd's assurances to the contrary, local and international organizations are shocked by the possibility of the erosion of equality rights as guaranteed in Sections 15 and 28, of the Canadian Charter of Rights and Freedoms. The recommendations advanced in this report appear to sanction the erosion of women's equality rights under the laws of Ontario. The Arbitration Act was never designed to accommodate family matters but was conceived of as a vehicle for commercial disputes. Stretched to this purpose, even with Ms. Boyd's "safeguards", it would effectively put at risk decades of legal reform in keeping with an equality and equal rights framework.

Our concern for the potential erosion of women's rights within constitutional democracies based on religious justifications is in keeping with the provisions of the Canadian Charter, and with international agreements (i.e.. the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Declaration on the Elimination of Violence Against Women) to which Canada is a signatory. The Government of Ontario must both understand the intent of these agreements and ensure that domestic laws and regulations are not in contravention of them.

BACKGROUND

In early 2004, the self-styled the Islamic Institute of Civil Justice announced it was planning to use Ontario Province’s 1991 Arbitration Act to settle disputes within the Muslim community. ‘Shari’a Councils’ were to be set up to apply a form of Shari’a law.

More than half of Canada’s 600,000 Muslims live in Ontario Province and would be affected if the move went ahead.

Many Canadian women’s groups, particularly from migrant communities, immediately protested. The Canadian authorities, however, responded that, under the country’s multi-culturalist policy, other religious communities already accessed the Arbitration Act for similar purposes. Meanwhile other Canadian women’s groups and human rights groups either supported the move on the grounds of ‘difference’ and ‘diversity’ or were afraid to support women’s groups who resisted the move for fear of being labeled ‘racist’.

Following continued protests by women, the Canadian government ordered a review of the application of the Arbitration Act by the former Attorney-General Marion Boyd. Despite representations by women’s groups documenting the existing problems with application of the Act and warning of the likely negative impact on women’s rights, the Boyd Report released on 20 December 2004 endorsed the use of the Act in the resolution of family disputes for religious communities.

In effect, a two-tier system of laws could be introduced if this experiment is now applied and widened beyond Ontario. Most vulnerable will be refugees and immigrants who do not speak either official language - French or English - who are unaware of the Canadian Charter of Rights and Freedoms and who are most likely to be coerced by family and community pressure to submit to ‘Shari’a’ arbitration - like it or not.

The Canadian Council of Muslim Women (CCMW) recommends that family matters are best settled under Canadian and Ontario family law statutes and regulations. Separate arbitration tribunals to settle family matters under Shari’a/Muslim family law will ghettoize and further marginalize vulnerable women.

Concerns about the establishment of Shari’a/Muslim family law arbitration tribunals prompted CCMW to commission two separate studies:

Applicability of Shari’a/Muslim Law in Western Liberal States, to determine how other jurisdictions with significant Muslim immigrant populations are dealing with the issue, and Family Arbitration Using Shari’a Law: Examining Ontario’s Arbitration Act and Its Impact on Women, commissioned jointly by the CCMW, the National Association of Women and the Law (NAWL) and the National Organization of Immigrant and Visible Minority Women (NOIVMW).

Results of the two studies were presented to Marion Boyd on Saturday, September 11, 2004. This was CCMW’s second meeting with Ms. Boyd, who was appointed by Ontario Premier Dalton McGuinty to review the 1991 Arbitration Act when several women’s organizations and many concerned Muslims and non-Muslims raised concerns about the establishment of Shari’a tribunals in Ontario. Such tribunals are permissible under the Arbitration Act.

The first study examined the application of Shari’a/Muslim family law in France, Germany and Britain. “In Britain, the proposal to establish a separate system of Muslim family law was rejected in order to uphold universally accepted human rights values, especially in relation to women,” the study concluded.

“What is apparent is that Canadian Muslim women risk being ghettoized and their equality rights seriously violated in a country that is known in the world for its commitment to human rights,” said Pascale Fournier, the author of the study, who has studied the application of Shari’a in several predominantly Muslim countries, as well as in Europe and North America. “All eyes are on Canada to see what we do here.”

The study on the Arbitration Act pinpoints several areas of concern for the CCMW with respect to arbitration and the application of Shari’a/Muslim family law as a means of settling family disputes:

  1. There is no requirement to keep a record of arbitral awards; therefore there is no way to determine fairness to both parties.
  2. Filing an arbitration order with a court is neither mandatory nor does it represent court oversight of an arbitral award.
  3. Proponents of the Shari’a tribunals say that the Canadian Charter of Rights and Freedoms will protect women’s equality rights. The Charter applies only to state actions and not disputes between private individuals such as the arbitration agreements or awards.
  4. Proponents have also made statements that custody/access or child support matters will not be arbitrable.However, there is no legal impediment to using the Arbitration Act in such matters therefore there are no guarantees that arbitration will not be applied in these matters.
  5. There are no requirements for the arbitrators to be trained or educated in Canadian laws or Shari’a.
  6. Parties who choose the arbitration route are not eligible to receive legal representation through Legal Aid Ontario.
  7. While arbitration requires consent of both parties and is voluntary, women may feel compelled to go to a Shari’a tribunal by virtue of their strong religious affiliation and family and community pressures.
  8. While the right of appeal exists under the Arbitration Act, the courts afford a high degree of deference to the arbitrator’s decision, particularly where an arbitrator can claim a highly specialized expertise, such as religious knowledge and experience in interpreting religious texts.
  9. Shari’a law is not a homogeneous civil code but rather a very complex system of Muslim jurisprudence interpreted by culturally and ethnically diverse individuals often from a patriarchal perspective. There are no norms or standards for settlements, e.g. amount or length of alimony and support payments, age of male or female children for custody awards. It is precisely the arbitrariness o f these awards that will jeopardize the equality rights of Muslim women. CCMW fears that arbitration using Shari’a/Muslim family law will continue to be based on a very narrow, conservative interpretation of Islam, which has already had a negative impact on some Canadian Muslim women and Muslim women world-wide.

There are indications that various options are being considered to address concerns regarding the Arbitration Act. If these options include formal education and training, greater accountability for the arbitrators, and increased education for Muslim women on their rights with respect to Canadian family law, CCMW believes that such solutions, while well-meaning, will add more bureaucracy, complexity and expense to an already over-burdened legal system and in the end will further privatize family law. The Council is advocating that family matters be exempt from the Arbitration Act as is the case in Québec, where they are considered to be a matter of public order. In fact, Quebec last week rejected the use of Islamic tribunals, which can be used to settle family disputes, in the province. In a unanimous vote Thursday, the Quebec legislature passed a motion against allowing sharia to be used in the legal system.

ACTION

Send your letters and messages of support to:

hogben@kingston.net
abrunet@dd-rd.ca
bonnie@nawl.ca

Please Cc your messages to WLUML:

wluml@wluml.org

You may adopt WLUML Letter to the Ontario Authorities:

MODEL LETTER

Dear Madam or Sir:

The international solidarity network Women Living Under Muslim Laws urges the Canadian government and the authorities of Ontario and other provinces to listen to the voices of the women of Canada, in particular those migrants whose families come from Muslim societies, who are resisting the use of the 1991 Arbitration Act to introduce so-called ‘Shari’a Courts’ in the resolution of family matters.

WLUML links women in over 70 Muslim countries and communities, linking women in majority and minority contexts, in states where laws are framed with reference to Islam and in secular states, and crossing boundaries of geography, language, ethnicity and other identities.

Despite our diversities, we share the commonality that all too often our oppression as women is justified with reference to Islam, and that extreme right forces seek to manipulate religion to gain political and social power.

In the name of ‘freedom of expression’ and anti-racism – the very values we stand for – and under the disguise of defending ‘community rights’ in face of the painful realities of continuing racial discrimination, fundamentalist groups and their cultural relativist allies on the left are demanding special rights for the ‘Muslim community’. But these special rights inevitably involve anti-women practices and highly regressive interpretations of Islam. They also unquestioningly presume that all migrants from Muslim contexts identify as ‘Muslim’.

In the bitter experience of the women linked through our network, constitutional guarantees of equality have not been sufficient to protect women from the effects of the ‘Islamisation’ of laws nor from the anti-women social atmosphere that they have encouraged since the rise of fundamentalist groups in the 1980s.

Indeed, family and community pressure can severely limit a woman's right to exercise ‘choice’ regarding for example which legal fora she approaches for her claim. Provisions which apparently offer a range of legal options can in reality force women to have to ‘choose’ one aspect of their multiple identities at the cost of another. This often jeopardises women's autonomy, as already demonstrated in other migrant communities, such as in France and the UK.

This is particularly true given that multiculturalist policies often give women’s voices on community issues less legitimacy than men’s voices. Obscurantist men cannot legitimately claim to ‘speak for’ these communities which are as politically and socially diverse as the majority community. If the majority community expects its issues to be resolved through democratic and pluralist processes, and be addressed as citizens rather than members of any congregation, why should these processes be denied to those from a migrant Muslim background?

The UN Human Rights Committee in General Comment No. 28 has said that: “States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women's right to equality before the law and to equal enjoyment of all Covenant [on Civil and Political Rights] rights.”

WLUML therefore urges the Canadian authorities to listen to the concerns expressed by women and to follow international human rights law on this matter.

Yours sincerely
Women Living Under Muslim Laws
International Coordination Office