In praise of one law for all

For

reasons of their own, both sides in

the debate over the use of Sharia law in Ontario’s system of family arbitration have tended to exaggerate its significance. Those opposed have sought to impress upon the public the terrible consequences for women if the practice were permitted; those in favour, the terrible injustice to Muslims if it were not — a complaint that was not diminished by the Premier’s eventual decision to disallow all forms of religious arbitration.

But of course, the practice is permitted. As things stand, there is nothing to prevent the province’s Muslims from using Sharia law to settle family disputes, nor will there be once the province enacts amendments to strip religious tribunals of the legal authority they currently enjoy under its Arbitration Act. What was granted to other faiths, and what would have been extended to adherents of Sharia, was not the right to use such tribunals — people can always settle their differences on any basis they please, so long as both parties consent — but that their decisions would be binding in law: that is, they would have the power of the state behind them. Either party would have recourse to the province’s courts to appeal or enforce their terms.

Supporters could hardly deny the potential for abuse of women’s rights, in view of how Sharia is interpreted and enforced in other countries — the source countries, as it happens, for many of the imams who would apply it here. Rather, it was argued that by enfolding Sharia in the state’s embrace, it could be made subject to the Charter of Rights and highercourt supervision. Women, it was argued, would be better protected inside the tent than out.

But the issue, as far as the rights of women are concerned, is not legality, but consent. Interviews with women who have been through the existing, informal system of Sharia-based arbitration make clear that their options were already circumscribed, not by poverty or patriarchy, but by their own desire to live within their faith. Had they elected not to submit to the tender mercies of Sharia, with all of its problematic treatment of women, they could not have obtained religious approval for their divorce, and hence for any subsequent marriage.

It may be debated whether consent is possible in such a situation. It is hard to ask someone to change their faith, even if they are sometimes oppressed by its dictates. Still, either consent is given or it is not. If it is, then there is not much issue, with or without the involvement of the state: So long as both parties agree to arbitration of their own free will, there is no injustice, and no need for state supervision. But if there is no consent, then it is hard to see why the state would wish to lend its imprimatur to such a process, even with the the prophylactic of the Charter.

Indeed, it is hard to see why the government ever got itself caught up in the religious arbitration business to begin with, even before the Sharia controversy. Ontario managed to get along very well before the 1991 changes that first gave legal sanction to religious arbitration, and it will get along just fine after their repeal. The province could hardly have withheld its approval for Sharia-based tribunals without applying the same standard to those of other faiths, even if these have not occasioned the same concerns. Yet it could not have authorized the latter without expecting demands for equal treatment from the the former.

Which is the best reason for shutting the whole thing down now. Probably Sharia courts would not have threatened women’s rights — though it’s striking how many Muslims feared they would. But these things have a habit of escalating. The precedent having been set with regard to family law, can anyone doubt this would soon be followed by demands that Sharia be adopted in other areas? Why should one be permitted and not the other? What objection could there be, except Islamophobia?

The forces of sectarianism, religious or otherwise, are powerful enough these days without the government’s active encouragement. And as each identity group stakes its claim, another uses this as the basis for its own. It is instructive, if coincidental, that just as the Ontario Premier was putting out one fire, another was igniting, in the form of demands, from a publicly-employed “equity officer,” for black-only schools in Toronto. It’s probable this will peter out. But how much more fuel would it have had if it were possible to argue, well, you have a separate legal system for Muslims, why not separate schools for blacks?

Indeed, the principle the Premier invoked with regard to religious arbitration, “one law for all,” might find more takers if it were more generally observed. It’s a little late, after all — after provincial funding for Catholic schools, after aboriginal sentencing circles, after affirmative action and the many other legal distinctions based on race, sex or other the province has seen fit to establish. If we really believe in one law for all, perhaps we should start practicing it.

Clarification: Sloppy phrasing in a recent column left the impression that CBC Newsworld benefits from the same public subsidy as the main channel. It doesn’t.