Islamic law proposal to undergo review
by Caroline Mallan ("The Toronto Star," June 11, 2004)
The Ontario government will review plans to use Islamic law to settle family disputes before the practice is set to begin in the province.
Attorney-General Michael Bryant told reporters yesterday that the Islamic Institute for Civil Justice — the group that plans to use existing arbitration legislation to apply a form of sharia law to settle disputes in the Muslim community — will not begin until later this year.
"We're looking at what the options are, aware of the fact that the (institute) will not be up and running until later on this year, which permits us time to look at it and look at implications that any proposals that are being put forward might have on the entire arbitrations system and how the Arbitration Act works," Bryant said.
Premier Dalton McGuinty announced this week he has asked Bryant and Sandra Pupatello, the minister responsible for women's issues in his cabinet, to examine the issue in depth and report back to him on the best course of action.
The practice is permitted under the existing Arbitration Act that allows religious groups to resolve civil family disputes within their faith, providing all affected parties give their consent to the process and the outcomes respect Canadian law and human rights codes.
Several legal and women's groups have expressed concern that Muslim women might be coerced by what they label as a male-dominated culture into participating in sharia tribunals without informed consent because of community or religious pressures.
They argue the 1,400-year-old set of rules and laws is flawed because it does not view women as equal and therefore cannot provide equal justice to all parties in disputes, especially on issues of divorce, separation, child custody and division of property.
McGuinty said he shares that concern.
"I want to make sure we are getting this right and a particular concern of mine is whether or not women, who are, as I understand it opting into these arrangements ... I want to make sure they are in fact well informed about their laws under Canadian legislation and Ontario human rights codes."
Controversy arose after the Islamic Institute of Civil Justice made plans to use the 1991 Arbitration Act to settle disputes within the Muslim community. The move required no action on the part of the government, which has not passed any new regulations or laws directly related to sharia and the Arbitration Act.
Officials from the institute have stressed repeatedly that all of the arbitrations — details of which are still being worked out — will be subservient to Canadian law and charter provisions.
Bryant said the Arbitration Act is widely used by a variety of groups, both secular and religious.
"Right now, the Arbitration Act is being relied upon by a number of corporations, businesses, some of which in some cases, are applying religious laws. It's not like someone is coming to the government of Ontario seeking approval or disapproval of it." McGuinty told reporters the practices of people from different faiths should not come ahead of the inherent rights of all Canadians.
"We are saying there is something that takes precedence over all practices and cultures, and those are Canadian values as enshrined in human rights codes and our charter of rights."
Under the act, Hassidic Jews have been running their own Beit Din arbitrations based on Jewish law for years, as have Catholics and Ismaili Muslims. Rulings are binding, but must be consistent with Canadian laws and the Charter of Rights.
One government source said one possible outcome of the review ordered by McGuinty might be mandatory independent legal advice for everyone involved, especially Muslim women who might not appreciate that they have an alternative in the regular courts.
The Canadian Council of Muslim Women, whose 900 members come from a variety of Islamic sects, say Muslim women could be coerced into taking part in sharia tribunals or face family and community ostracism — or worse.