Thursday, September 15, 2005

All Sharia, all the time; its all good to some

The debate over the 1991 Ontario Arbitrator Act and Sharia Law goes and on, and on, and on, and on, and on. The debate is like a slow moving train wreck that never runs seems to run out of rail. Strangely enough my position on the Arbitrator Act leaves me standing in a corner somewhat all by my blogsome. Lucky for me, I learned early in life that I can take a few shots to the head and still rise to my feet for a few more.

The 1991 Ontario Arbitrator Act was a piece of horrendously bad legislation and violated the principle of separation of Church and State and equality before the law for all. The Act essentially paid religious tribunals to rule and enforce their judgments utilizing the coercive power of the Secular State (where necessary) in matters of family or civil law providing that both parties were consenting adults and willingly gave up their secular family and civil rights. It made multiple systems of justice in the areas of family and civil law.

The initial rationale for this piece of legislation was one of those mushy-feel good multi-cultural moments and much was touted at the time as both a cost and time saving piece of legislation. It was to allegedly going to lighten the load on the overburden Ontario family and civil court system beyond our ken.

Marina Jimenz had a rather informative article in the Globe and Mail on Wednesday where she contended that rabbinical courts in Ontario are rarely used, and in fact, in the last year alone only two cases were resolved using the faith-based rabbinical court to settle a dispute.
Meredith Cartwright, a lawyer and lecturer in religion, law and sexuality at the University of Toronto, says the small number of family law cases rabbinical courts arbitrate illustrates that most couples resolve disputes over custody and child-support payments in civil court or in private arbitration that is not faith-based.

Jewish groups have said they are considering a constitutional challenge to Premier Dalton McGuinty's recently announced ban on such tribunals.

"Proponents of faith-based arbitration are misleading the public in pretending there is widespread use of this mechanism," Ms. Cartwright said. "On this basis, they are asking for a new incarnation of faith-based arbitrations with government oversight and funding, which completely erodes the distinction between religion and state."

Rabbi Reuven Tradburks, secretary of the Beit Din (rabbinical courts) of the Council of Orthodox Rabbis of Toronto, conceded that the number of cases involving family disputes is small, but would not comment on the exact number. He said the principle underlying the right for Jews to go to rabbinical courts to resolve civil disputes is significant, however, and that settlements should have the imprimatur of the state.


But the Rabbi is somewhat misleading. Even before the 1991 Ontario Arbitration Act there was nothing in law that prevented two or more parties of consenting adults from resolving any dispute before a mediator of a faith-based tribunal. Once the law is repealed there still will be no law restricting any consenting adults to seek a resolution to any family or civil dispute using a faith-based tribunal. What will be missing is that after this horrendously bad law is repealed is any ruling from the faith based tribunal will not have the "imprimatur" of the state’s coercive authority nor will the faith-based arbitration be overseen or funded by the state. In simple English, it will be completely an out of pocket expense borne solely by the parties involved. I ask you as a taxpayer, why should you be compelled to fund and oversee multiple religious systems of family and civil courts of justice?

For Sharia law to be accepted and have an Islamic religious tribunal funded and overseen by the state with all the coercive power of the state to enforce its judgments would require significant amendments and safeguards added to the 1991 Ontario Arbitration Act. Bad law always means well and always requires constant revision. But, of course, to the critics of McGuinty’s decision to repeal the Act against all faith-based tribunals, all Sharia, is all good, all the time. I would challenge the pro-Sharia fraction to point to one country where Sharia law is the law of the land and move there post haste.

For the record, I would rather take my chances with the bombastic Michele Lansberg and the more than tedious Margaret Atwood than stand with the likes of Dr. Muhammad Al-Hajj, noted Sharia expert on the appropriate sized rod to beat your wife with, and the exceedingly dry Dr. Mohamed Elmasry. At least with the old broads, I could get a drink when I wanted one and they wouldn’t be discussing what sized stick to beat me with when I was busy being disobedient on principle.

3 comments:

Bob Tarantino said...

What will be missing is that after this horrendously bad law is repealed is any ruling from the faith based tribunal will not have the "imprimatur" of the state’s coercive authority nor will the faith-based arbitration be overseen or funded by the state.

In the interests of keeping the train wreck going a little bit longer, I'd just like to point out that faith-based arbitrations have not ever been "overseen or funded by the state" - nor was anyone proposing that future faith-based arbitrations be overseen or funded by the state. Which was precisely the point: instead of spending government resources on forcing people to drag their lives through the absolutely miserable process of a court case, why not allow contracting parties to resolve disputes between themselves in a manner which they mutually deem acceptable? One attraction of arbitration is that it requires less government spending than routing people through the court system.

As for the "imprimatur" of the state being lent to faith-based arbitrations, if we're going to object to this notion, then we'd better be prepared to have courts start refusing to enforce contracts on the basis that they think that the deal which has been struck between the contracting parties is "unfair" or "unjust" or some other nebulous term which will "offend" the sensibility of the "state" and militate in favour of the state refusing to lend it's "imprimatur" to what it views as a "bad" contract. In other words, massive, consistent and perpetual government interference in contractual relations between consenting adults. I trust you'll forgive me if I find that somewhat less than attractive.

Orikinla Osinachi. said...

I agree with the above response.
No more, no less.

The observations are valid.

Kateland, aka TZH said...

"In the interests of keeping the train wreck going a little bit longer, I'd just like to point out that faith-based arbitrations have not ever been "overseen or funded by the state" - nor was anyone proposing that future faith-based arbitrations be overseen or funded by the state"

Really? Who pays when a family court Justice reviews a faith based tribunal decision in a family law matter? Furthermore, faith based tribunals can and have their orders for spousal and/or child support registered with the Family Responsibilities Office (who receives its funding from the provinicial purse) for collection.

I have known a few people who have used a religious tribunals to resolved custody, access and support matters and there was no alleviation of pain, misery or time that I could see.

As to your second point, that is precisely the position the current Arbitrators Act puts the court system in. Furthemore, if the Boyd recommendations were implemented there would be more governmental oversight and increased funding, not less - I am referring to #25-46 in particular.

Quite frank, what gives me the willies is the state enforcing any decision rendered by a religious tribunal.