Tribunals Will Marginalize Canadian Muslim Women and Increase Privatization of Family Law
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 Sharia/Muslim family law will ghettoize and further marginalize vulnerable women.
Concerns about the establishment of Sharia/Muslim family law arbitration tribunals prompted CCMW to commission two separate studies:
Applicability of Sharia/Muslim Law in Western Liberal States, to determine how other jurisdictions with significant Muslim immigrant populations are dealing with the issue.
Family Arbitration Using Sharia 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 1991Arbitration Act when several women’s organizations and many concerned Muslims and non-Muslims raised concerns about the establishment of Sharia tribunals in Ontario. Such tribunals are permissible under the Arbitration Act.
The first study examined the application of Sharia/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 Sharia 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 Sharia/Muslim family law as a means of settling family disputes:
There is no requirement to keep a record of arbitral awards; therefore there is no way to determine fairness to both parties.
Filing an arbitration order with a court is neither mandatory nor does it represent court oversight of an arbitral award.
Proponents of the Sharia 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.
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.
There are no requirements for the arbitrators to be trained or educated in Canadian laws or Sharia.
Parties who choose the arbitration route are not eligible to receive legal representation through Legal Aid Ontario.
While arbitration requires consent of both parties and is voluntary, women may feel compelled to go to a Sharia tribunal by virtue of their strong religious affiliation and family and community pressures.
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.
Sharia 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 of these awards that will jeopardize the equality rights of Muslim women. CCMW fears that arbitration using Sharia/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.
“We are very concerned that Muslim women will see their equality rights eroded,” said Razia Jaffer, CCMW’s National President. “Canadian women have fought long and hard to win the rights that we now enjoy.”
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.
“We believe that family matters are in the public interest and therefore we do not support family disputes being settled in private spaces,” Razia Jaffer said. “Our preference is to see family matters being settled through existing family laws and the justice system being sensitized to the needs and aspirations of Canadian Muslim women.”
Canadian Council of Muslim Women is a pro-faith organization committed to equity, equality and empowerment of Canadian Muslim women.
For further information, contact:
Razia Jaffer, 403-703-6768Nina Karachi-Khaled, 905-876-8292Nuzhat Jafri, 416-487-8037E-mail: info@ccmw.com