Inshaa'Allah, I'll provide some accurate articles that analyse this issue.
Labour and Human-rights lawyer, Sister Mihad Fahmy, writes the following:
Imagery is everything. Especially when coupled with the power of fear. To illustrate, Let's play a game of word association.
So it is quite understandable that you may have asked yourself how shariah - the laws of mullahs and burqas - could possible be applied here. You may also have bought into the argument that Canadian-Muslim women will somehow be coerced into the proposed faith-based arbitration process. This, even though the same concern is not expressed with respect to Jewish and Christian women, some of whom already choose to settle family law and inheritance disputes according to the laws of their respective faiths.
It is frustrating that such biases and stereotypes about Islam, and Muslim women in particular, have been driving the debate regarding religious-based arbitration. What is even more troubling is that the discussion is an immensely important one for all faith communities.
Yet knee-jerk reactions to the idea that the words Islamic, law and Canada can all fit in the same sentence have blurred the real issues that warrant a constructive discussion.
Former Ontario attorney general Marion Boyd has been trying to have such a discussion over the past few months, as she reviews this province's Arbitration Act.
Under this act, parties may agree to use their religion's principles to settle certain matters, including divorce and inheritance. The now infamous plan to allow Muslims to choose their own faith as the basis for resolving such disputes is not novel or even very revolutionary - such faith-based arbitrations are already being carried out by Christian and Jewish communities.
This points to one aspect of the debate that risks getting lost in the generalizations and alarmist rhetoric. If we take the act as it stands now, how can we possibly justify denying Muslims what is available to adherents of other faiths?
Those, such as Peter Worthington, who claim that Islamic law inherently "is slanted against women and discriminates in a way that violates the rights and freedoms that the Canadian Constitution is pledged to uphold," surely must also recognize that to exclude Muslims from the provision of the act risks violating the Constitution's s equality rights.
Realistically, there are only two options. We can scrap the act's provisions altogether because or our fears regarding one particular faith group, or we can begin a mature discussion befitting a multicultural society.
The former option is the easy way out. But such a decision compromises our multiculturalism policy, since it would be driven by a fear of difference. People seem to forget that multiculturalism values are firmly enshrined in the Charter of Rights and Freedoms.
The latter option is more arduous because it involves posing tough questions and considering a number of answers. The fundamental question is how to balance the desire of faith communities to resolve certain private disputes according to religious principles with the need to protect vulnerable parities and uphold the charter.
Perhaps we should start with those arbitrating the disputes. Let's look at ways of ensuring that they are adequately trained in arbitration and mediation, and also ask ourselves how their decisions can be monitored and reviewed. We also need to draw the line between decisions that simply reflect a different picture of equity and those that clearly contravene principles enshrined in the charter.
Turning to the parties that use faith-based arbitration, how can we ensure they are made fully aware of their rights? Similarly, what kinds of education and outreach initiatives are necessary to reach vulnerable women?
And, perhaps most importantly, does the province have the political will to act on the answers to such questions?
People have written hysterically about the unCanadianness of shariah law here. What would be truly unCanadian is if we fail to pose the tough questions and have the necessary discussion in a transparent fashion. Let's hope Boyd doesn't take the easy way out. (Source
Similarly, Dr. Sheema Khan, Chair of CAIR-CAN, writes the following:
Sharia is an Arabic word that literally means "a path to water," the source of life. For Muslims, it is a comprehensive framework of justice based on the Koran and the example of Prophet Mohammed. Sharia's aim is five-fold: protection of life, faith, wealth, intellect and progeny. Sharia has spanned 14 centuries, numerous cultures and has given rise to at least five recognized schools of jurisprudence. It covers such disparate fields as economics, criminal justice, international relations and family matters. The study of sharia is so important that in the 1990s, Harvard law school launched an Islamic legal studies program.
Yet, many Canadians have opted for a more facile description: sharia, bad. Globe columnist Lysiane Gagnon equated it with incest. Anti-sharia activist Homa Arjomand has called for the imprisonment of sharia advocates. And Quebec MNA Fatima Houda-Pepin -- ripping a page from what might be called The Protocols of the Elders of Mecca -- continues to warn about the international conspiracy of Islamists to compliant Quebec media outlets. It's the same mantra she used a decade ago, dismissing those of us who campaigned for the right to wear the hijab as unwitting pawns of those same Islamists. Great fodder for Jon Stewart and The Daily Show -- except no one is laughing.
Undoubtedly, sharia-phobia has skewed the debate over Ontario faith-based arbitration to such a frenzied level that lies were perpetuated as facts, paranoia as patriotism. Just as the neo-conservative lobby peddled the bogus threat of Iraqi WMD, our own neo-secularists (including several Muslims) brazenly peddled Muslim family law as an existential threat to Western liberal democracy. As in the case with Iraq, the audience was a fearful public ready to accept its own biases coupled with sensational media accounts.
And it worked. Like the French decision to ban "conspicuous" religious symbols in public schools, Ontario Premier Dalton McGuinty's decision to ban all faith-based arbitration was aimed primarily at Muslims. Other religions were included to provide a veneer of fairness. At least the Quebec Legislature had the candour to express its animosity toward sharia alone, remaining silent on all other faiths.
Not so, you protest, there are legitimate issues of debate. Yes, but consider the following: During the 14 years of operation of Jewish, Aboriginal and Ismaili arbitration tribunals, the issues of "one law for all Ontarians," of "parallel justice systems" and the "ghettoization of minority groups" were never raised by the public. Why all the hue and cry when Muslims wish to avail themselves of the same rights as their fellow Ontarians?
And for those who view this as a victory for the protection of women -- think again. There are too many unqualified, ignorant imams making back-alley pronouncements on the lives of women, men and children. The practice will continue, without any regulation, oversight or accountability. Muslim women (and men) will still seek religious divorces and settlement of inheritance matters in accordance with their faith. And not just the ubiquitous downtrodden immigrant Muslim woman who speaks little English. Our overburdened courts will still need to rely on experts in Muslim family law to deal with pre-nuptial contracts. Nothing has really changed -- except the fact that we have missed a golden opportunity to shine light on abuses masquerading as faith, and to ensure that rulings don't contradict the Charter of Rights and Freedoms.
Despite the acrimony surrounding the debate, there have been a few silver linings. First has been the tremendous debate engendered within the Muslim community about the practicality (or lack thereof) of establishing such tribunals. Unlike rabbis and priests, there is no college of imams in Canada to provide accreditation. There are no institutes to train jurists in Muslim family law. Many Muslim women are ignorant about their own rights within Islam, schooled instead in cultural misogyny. And certain provisions -- such as inheritance shares between sons and daughters -- raise concerns of contradicting the Charter. There would have been no shame for community leaders to say: "While we acknowledge our right to arbitration, we admit that we are not ready. We need to first educate our community so its members can make informed choices." But even those who had doubts about Muslim tribunals have been stung by the shrill language of opponents and the abrupt ban by Mr. McGuinty.
Beneath the fear-mongering, however, lie fundamental issues that speak to our identity and values as Canadians. While we treasure the diversity of our population as a strength, an August Globe/CTV poll indicates that 69 per cent of Canadians believe that immigrants should be encouraged to integrate and become part of the broader society rather than maintain their ethnic identity and culture. Interestingly, an August poll by the Pew Charitable Trust shows that 60 per cent of Canadians believe that Muslims want to remain distinct from the broader society. This is not a healthy situation, and requires tough, honest discourse -- not the hyperbole we have just witnessed.
The other divide has to do with the place of faith in our society. Neo-secularists have their sights set on religious schools, faith-based lending institutions and "conspicuous" religious symbols. The majority of Canadians, like their European counterparts, do not ascribe an important role to faith in God. Yet in last year's landmark case of Syndicat Northcrest v. Anselem, the Supreme Court of Canada stated "the ability to freely express one's faith and one's connection with a religious community are as essential to human dignity as are food or shelter."
Will the banning of all faith-based tribunals violate this principle? Consider that Orthodox Jews must abide by the Beit Din (rabbinical courts). We must continue to find ways to accommodate the sacred and the secular that respect the basic human impulse of faith.
Perhaps the McGuinty decision reflects the prevailing attitude of the majority. However, the way in which it was pronounced was shameful. A principled, detailed statement would have been far more satisfactory than the terse comments issued late Sunday on the fourth anniversary of 9/11.
Yes, criticism would have still ensued. But at least the Premier would not have left the impression that Islamophobia can play a prominent role in setting public policy. (Source
And Riad Saloojee
, the executive director of CAIR-CAN, writes the following:
The debate on an Islamic arbitration initiative has reached fever pitch ("Canada's law must be secular," Sept. 3), with some people concerned that many Canadian Muslims want to use Islamic law to resolve personal and family disputes.
Part of this concern is natural, given the undeniable and inequitable application of the shariah in many countries. Part of the problem, as well, concerns a general ignorance of Islamic law -- its history, principles and nuances -- that permits intellectual chauvinism to pass for fair comment.
The shariah is not, as some think, "immutable." The spirit of Islamic law -- its universals such as justice, equity and mercy -- is unchangeable. The letter of the law, however, varies depending on whether its application would promote or violate the letter's spirit. There is a rich body of principles that govern the application of law to ensure that law is equitable, gradual, moderate and sensitive to individual and communal context. It is precisely for this reason that many Canadian Muslims support Islamic-based arbitration.
Given current faith-based arbitration initiatives by the Jewish and Christian communities, why would the Muslim community not be entitled to do the same? Permitting members of religious minority groups to have the option of resolving civil disputes according to their own religious doctrine within a framework that is respectful of the Charter of Rights and Freedoms is consistent with the Charter's own guarantee of freedom of religion.
In Muslim communities, the line between mediation and arbitration is porous. The reality on the ground is that many Canadian Muslims resolve their disputes by referring them to local community leaders.
Opponents of Islamic-based arbitration, far from protecting vulnerable parties, are ensuring that such ongoing processes are not standardized or scrutinized and do not operate openly and with accountability. Pure pragmatism indicates that a significant group of people want to, and will, resolve their personal disputes quickly, quietly and in keeping with deeply held religious convictions. By denying this, opponents are keeping their eyes shut.
A number of critical concerns, however, are justified. The consultations of Marion Boyd, former attorney general of Ontario, about the use of private arbitration to resolve family issues under Ontario's Arbitration Act are timely.
Currently, the act does not protect those who invoke it. As it stands, Ontario's Arbitration Act has been used primarily by sophisticated commercial actors and their lawyers. Although family issues were initially contemplated as within the purview of the act, they are latecomers to the current process. And the act reflects this. There are no safeguards to ensure all parties are acting voluntarily, especially the vulnerable; there are no mechanisms to ensure that parties are fully apprised of their rights under the act; and the act does not specify any standards for arbitrators.
Remedying these deficiencies for all types of faith-based arbitration is possible through appropriate legislative amendments.
First, the voluntary nature of the process can be assured by insisting that both parties receive independent legal advice and be informed of their right to appeal the arbitration decision once rendered, and of their right to challenge the arbitrator's ruling under section 13 of the act.
Second, immigrant and minority women need to be educated through a proactive education campaign using culturally and linguistically accessible literature about their rights and options in the case of family-law disputes.
Third, significant efforts must also be made by the provincial government, in partnership with minority communities, to craft a regulatory scheme for the selection, education and training of qualified arbitrators.
Finally, to ensure that participants and their representatives are able to make informed decisions about the arbitrator in their dispute, the provincial government should create a registry that would make available a "sanitized" copy of the decisions of all arbitrators.
What about a number of differential rights under Islamic law? One example usually cited is that men typically inherit more because they are responsible under Islamic law for the financial support, maintenance and care of their families. Using analogies under Canadian law, these differential rules need not necessarily preclude the initiative. It is common, for example, for parties to give up some rights to attain other goals. For example, many beneficiaries do not contest wills for the greater priority of family unity, while parties might agree to a marriage contract regarding an unequal separation of marriage assets.
The barbarians are not at the gates and liberalism is not under siege. But it is time to have a very Canadian, civilized dialogue. (SOURCE
Hopefully this material will be helpful to everyone looking into this issue.