[Marxism] Forwarded from H. Kopyto on sharia law

Louis Proyect lnp3 at panix.com
Fri Nov 18 14:23:36 MST 2005


I would like to publish my contribution to a debate that is going on 
amongst socialists in Ontario on the matter of the legitimacy of 
faith-based tribunals used to arbitrate matters that would normally appear 
before the courts. I have attached my contribution with this email. [LP: 
Since we don’t allow attachments, I am appending the article below.] It is 
a polemical response to an article by Richard Fidler. The context follows.

Recently, in Ontario, the Liberal government of Dalton McGuinty, 
commissioned a report on the extension of faith-based tribunals for 
Muslims. Such tribunals already exist (and still exist) for Jewish and 
Christian groups who avail themselves of arbitration of disputes in 
accordance with religious practices.

The report, issued by a former cabinet minister, Marion Boyd, of the NDP 
government of Bob Rae, recommended extending such arbitration tribunals to 
Ontario Muslims, based on the practice of Sharia Law. The public response 
was not favorable and Premier McGuinty wound up rejecting the Boyd report 
and vowed that he would revoke the tribunal privileges of Christian- and 
Jewish-faith groups.

Subsequently, there has been a discussion in the left about the meaning of 
this decision. Richard Fidler, a former editor of the Trotskyist newspaper, 
Labour Challenge, and a longtime socialist intellectual has condemned the 
decision on the grounds of being discriminatory against Muslims. However, 
other leftwingers, including some Muslim feminists, were in the forefront 
of the struggle against the Boyd recommendations.

Richard Fidler has written an analysis of the situation and the debate in 
an online socialist publication. This has led to a rebuttal piece by me, 
Harry Kopyto, who in the past was a colleague of Richard Fidler's in the 
Trotskyist movement.

If you would like a copy of Fidler's original piece, email me and I'll 
forward it. [Actually, it can be read here:
<http://www.socialistvoice.com/Soc-Voice/Soc-Voice-52.htm>

Harry Kopyto

<mailto:harry.kopyto at sympatico.ca>harry.kopyto at sympatico.ca

FAITH-BASED ARBITRATION
by Harry Kopyto

===

A recent article critical of Ontario Premier McGuinty’s ban of faith-based 
arbitration by Richard Fidler reproduced with a supporting editorial note 
in a recent issue of Socialist Voice reflects an unusually poor 
understanding of the importance of separating religion from the state as 
well as how to reach out to oppressed communities and to support equal 
rights for women.

In his article entitled McGuinty’s Ban on Faith-Based Arbitration: No 
Victory for Women’s Rights, Richard Fidler attacks the Ontario government’s 
decision not to implement state enforcement of Sharia Family Law Tribunals 
and to ban such tribunals for other religious groups as a capitulation to 
racial prejudice that he says was spearheaded by feminist organizations, 
the labour movement, the left and Canadian Muslim women. It is clear that 
Fidler is perplexed by the embrace that the Left has given to opposing 
public enforcement of faith-based arbitration (as opposed to defending the 
right of voluntary arbitration). His analysis asserts that the decision to 
ban public enforcement of Sharia Law reflects the Liberal Government’s 
capitulation to anti-Islamic prejudice and racism and that faith-based 
arbitration, which has existed for some time, is, subject to governmental 
regulations, ­not oppressive to women.

There are two fundamental points, which from our point of view establish 
the framework for this ongoing discussion that will not go away for many 
years and undoubtedly will emerge again as the subject of public debate 
when the repeal legislation is presented in the Ontario Legislature (if 
McGuinty actually keeps his promise.). First, as a precept to any 
democracy, we must recognize that any group of people are free to 
voluntarily engage in any form of resolution of their differences that they 
wish without state interference. As long as the activities do not violate 
fundamental precepts of law which apply to all citizens equally, 
faith-based arbitration should be as accessible to those who wish it as 
readily as membership in a chess club. Religious communities, whether 
Mormon, Catholic, Islamic or Jewish, have engaged in such informal 
arbitration of issues touching upon the rights of members of their 
community including family law issues for decades.

On the other hand, an equally fundamental precept of democratic states that 
has existed for centuries is that there should be separation of religion 
and state. The Canadian government, which pays lip service to this concept, 
breaches it every day; for example, by the funding of the Roman Catholic 
School system, by granting tax-free status for churches and other religious 
institutions and by a reference to God in the Canadian Charter of Rights 
and Freedoms. Therefore, separation of religion from the state is never a 
fait accomplis and every generation fights this battle anew on the terms 
and issues posed by the times in which it finds itself.

Regretfully, the Arbitration Act passed by the NDP Rae government of 
Ontario in 1991 also breached this fundamental concept. Permitting 
Christian and Jewish religious authorities to register faith-based 
decisions regarding family law issues through the enforcement facilities 
provided by the Ontario government, granted the Iron Heel of compulsion to 
religious edicts. The divide between state and religion was thus 
egregiously breached.

The Ontario government has now promised to repeal all compulsory 
enforcement of faith-based arbitration decisions. If it is actually 
implemented, the proposed repeal does not undermine voluntary arbitration 
within ethnic communities but merely renders the obedience to such 
decisions also voluntary. Why should it be otherwise? If submission to the 
rule of Christian clergy, priests and imams is truly voluntary, 
voluntariness should flow through the entire process. If state-enforced 
compulsion is needed, how can it be said that submission to such religious 
tribunals is voluntary?

There are other subsidiary questions raised by Fidler and also echoed by 
Paul Kellogg in the October 8, 2005 issue of Socialist Worker and Professor 
Alan Young from Osgoode Hall Law School in a recent article written by him 
in an issue of NOW magazine. Although the ban on faith-based arbitration is 
discounted by these writers as a victory for women’s rights, the fact 
remains that a group of Muslim women spearheaded this battle against 
enforcing Sharia Law. Why would they have done it if they had no fear of 
unfairness? There is a near-consensus among critical observers that most 
religious institutions are under the thumb of dominant male hierarchies 
which control them and reflect age-old patriarchal, anti-feminist 
sentiments. Catholicism, Protestantism, and Judaism reflect patriarchal 
standards as much as does Islam. It ill behooves democrats, let alone 
Marxists like Fidler, to positively identify leaders of religious 
institutions as providing solace in a soul-less world” to ethnic 
minorities. In any event, what is ultimately at stake here is not the right 
of religious communities to arbitrate family law issues but rather whether 
the decisions of Christian clergy, rabbis and imams should be enforced by a 
secular state. Unfortunately, Fidler clouds the real issue by effectively 
arguing that the autonomy of religious communities cannot survive except 
through state enforcement.

In his contribution, Fidler goes on at length about the need to look for 
ways to relate to minority communities. A worthwhile sentiment indeed but 
there are better ways of doing this other than embracing the parochial and 
religious leaders of these communities who too often reflect homophobic and 
backward attitudes to women. In fact, Fidler explicitly recognizes the 
danger that his proposals would pose to equal rights and treatment in these 
communities by describing at length the safeguards proposed by Marianne 
Boyd, former N.D.P. cabinet minister whose Commission recommendations have 
now apparently been rejected by the Ontario government at least for the 
time being. If participation in religious tribunals is as completely 
voluntary and as meaningful as Fidler states, why do we even need 
safeguards? After all, accepting Fidler’s arguments, why would procedural 
and substantive limits on religious tribunals adjudicating on family law 
issues not undermine what he refers to as the “religious precepts” which he 
sees as “a powerful means of self-identification”, “of self-determination” 
and a key precondition of these communities “to being able to combat their 
oppression”?

Much of Fidler’s polemic revolves around defending the treatment of women 
under religious law. Fidler talks about the lack of criticism of the 1991 
Arbitration Act during the last 14 years, ignoring the pressures on women 
to keep it “all in the family”.

Minority women are seldom articulate in the dominant culture and language 
and are often compelled by informal­nonetheless profound and real­ 
pressures to submit to religious tribunals adjudicating on family law 
issues without an awareness of their rights in civil law. Women in many of 
these communities, including Jewish and Mormon, are subjected to 
systemically and ideologically unfair treatment. Although the Boyd 
Commission Report did not note any of this, seldom do women in the 
oppressed communities have the degree of organization or voice and 
influence that the religious leaders of these communities have to frame the 
public discourse, as exemplified by their ability to influence the Boyd’s 
Commission Report and the government’s policy over the last 14 years.

The absence of public criticism and discussion of abuse of the Arbitration 
Act since its inception reflects more the limits on public discourse 
imposed by the hierarchies that dominate ethnic and religious communities 
rather than the absence of unfairness and unequal treatment in the 
processes included under the rubric of the Arbitration Act.

True, the underfunded and underserviced public system of family law is 
hardly a paradigm of virtue. As Tarek Fatah of the Muslim Canadian Congress 
points out, the 1991 Arbitration Act was “one cost-cutting initiative 
introduced by then Attorney General Howard Hampton” that was part of the 
budget slashing that also sacrificed public auto insurance. Also as pointed 
out by Tarek Fatah in his Globe & Mail article of June 22, 2004, “the NDP 
and Hampton have shown rare political candor in admitting that the law they 
introduced is no substitute for a healthy, well-funded public justice 
system.” Accessibility to the Family Law Courts is far from universal and 
the badly abused Legal Aid system has done little to make it affordable to 
the majority of women who find themselves in Family Court. As Linda Hurst 
points out in an article in the Toronto Star last October (2005), “Many 
Muslim immigrant women will not be able to afford a divorce lawyer and will 
see no recourse but to accept an Imam’s ruling.” Discrimination against 
women and arbitrariness is rampant throughout society and not only in 
religious tribunals. But, at the very least, the formal pretence to equal 
treatment with respect to inheritance, custody and support issues in the 
civil family courts provides an opportunity to fashion limits to abuse that 
are not available in cloistered, closed and privatized arbitration systems 
shielded from public scrutiny and with meaningful rights of appeal 
available on only jurisdictional issues.

While Fidler rightly points to an anti-Islamic edge to some (and only some) 
of the criticisms that have been made of the proposal to extend state 
enforceability mechanisms to Islamic religious tribunals on family law 
issues, this cannot justify identifying the interests of oppressed ethnic 
communities with their parochial leaders. Ms. Chirin Ebadi, the first 
Muslim woman to win the Nobel Peace Prize, has pointed out that “Because 
there are many interpretations of the same Islamic teachings and laws, it’s 
not clear what interpretation will be used. Often, a lot of the 
interpretations are anti-democratic and against human rights.” (Globe & 
Mail, June 14, 2005.).” As an example, she refers to some Muslim countries 
allowing polygamy. Notwithstanding those differences, Linda Hurst has 
pointed out that “one of the constants in Sharia is that a woman’s 
testimony in a dispute is worth one half of a man’s”. .”

Many oppressed national minorities do not identify with and may even oppose 
their religious “leaders”. While some in these communities identify 
culturally with their religion, many­if not most­have a much broader and 
stronger identity with their culture that focuses on their language, 
literature, art and that takes them well beyond and often even excludes any 
affiliation to­and even opposition to­religious institutions. This was 
clear from the groundswell of opposition to extending Sharia law within the 
Asian and Arabic communities.

Fidler minimizes the fact that women in ethnic communities are often 
vulnerable, that many of them are coerced by family and friends to submit 
to religious institutions. Informal pressures generate shame for them to 
bring their differences “into the public” through secular family law 
adjudication. Many would risk losing their roots in their community and 
their ability to remain part of it if they were to seek secular 
adjudication of their family law rights. As Toronto writer Anna Morgan 
wrote in the Toronto Star on October 9, 2005, “For a small percentage of 
the Jewish community, it doesn’t matter what Premier Dalton McGuinty 
chooses to do about the way family law is legislated. In the very observant 
and Orthodox tight-knit family structures, women will choose to be governed 
by their rabbis and abide by their rulings, no matter what the Premier and 
his government decide. For these women, the desire to remain within their 
community limits the choice they allow themselves to make outside the 
boundaries of the values they have chosen to accept.”

It is just as much a myth to pretend that women who participate in 
religious family law tribunals under the Arbitration Act do so voluntarily 
as it is to identify the absence of a public discourse regarding their 
treatment by such tribunals as conclusive evidence of the fairness of such 
tribunals. Indeed, the opposite is likely to be true as religious tribunals 
usually clearly enforce religious laws that, for historical, social and 
ideological reasons are explicitly sexist. In this regard, Anna Morgan also 
describes the shame associated with speaking out publicly on any religious 
matter, especially on issues related to gender
 , “The Orthodox Jewish 
community, with its long experience of oppression, has made many fearful of 
criticizing community practices. The history of silence has become a 
cultural norm and public discussion of problems is often considered an 
ultimate betrayal.”

Fidler does not fully appreciate the complex and non-homogeneous nature of 
the communities which he purports to defend. He falsely identifies these 
minority communities with religious leaders by speaking positively about 
how Ontario moved recently to “make room for the beliefs of some minority 
communities
”. However, he does not “wish to go into the reasons” that the 
Ontario government seems willing to accommodate such minorities. The reason 
however is not a mystery. The Ontario government has not recently been 
converted to a policy of respect for and sensitivity to its minorities. It 
continues to treat them in an abject manner by refusing to offer foreign 
professionals credentials to practice their professions in the province, by 
encouraging racial, ethnic and religious profiling of Asians and Arabs, by 
gutting the Ontario Human Rights Commission and by cutting back on the 
quality and scope of educational and other social institutions and services 
which insure equal treatment and equal access.

The McGuinty government authorized the Boyd Commission to enhance its 
political popularity among ethnic communities which have historically 
provided an electoral base of support for Liberal parties provincially and 
federally. As Tarek Fatah points out in an article in the Globe & Mail on 
June 22, 2004, these “politicians seem to have their eyes set on the next 
election and are responding to the power brokering of religious leaders”. 
.” Boyd, who was a minister in the Rae government and who made endless 
compromises on virtually all key issues that faced her ministries, gladly 
played the role assigned to her by the Ontario Liberal government. However, 
the widespread and cascading resistance among Ontarians from all 
backgrounds including Islamic Women’s’ organizations forced the government 
to pull back. The crescendo of opposition also included a fierce rebuff 
against McGuinty from women MPPs in his own parliamentary caucus on the eve 
of his about-face. Under the circumstances, McGuinty agreed to remove all 
compulsory public enforcement of all private religious arbitration edicts. 
He was forced to take this position, yet to be implemented as a law and 
which may well be an empty promise, in order to avoid the indefensible 
appearance of favouring some religions over others.

Ironically, it was a coalition of feminist and civil rights organizations 
that forced the Boyd Commissions’ recommendations into oblivion and 
resulted in a victory for the extension of rights of women from a wide 
variety of ethnic backgrounds who will no longer be subject to a parallel 
privatized system of regressive family law regimes. It was a movement 
spearheaded by Islamic feminists that led the way for all women in minority 
communities including Christians and Jews to follow a path that could free 
them from parochial laws! It would be more consistent with Fidler’s 
proclamations to seek and express solidarity with these vibrant and 
politicized elements in the minority communities in Canada instead of the 
religious patriarchs in these communities who too frequently duplicate the 
oppressive roles which they play in their homelands against those who 
mistakenly look up to them in their yearning for salvation from alienation 
and rejection in the wistful Utopian dreams of Heavenly lies.

In his article, Fidler ignores the fact that the struggle against 
privatizing family law through religious courts is widespread and broad. On 
May 26, 2005, Quebec’s National Assembly unanimously adopted a resolution 
opposing the establishment of “Islamic Tribunals in Quebec and Canada”. .” 
This move was in response to massive opposition to the proposal headed by 
the Federation of Quebec Women, which also opposed Ontario’s move at that 
time. Frieda Osmami, an Algerian-born Muslim who heads the Federation has 
pointed out how “Secularism protects the state from religious conflicts” 
and sees their struggle as one which opposes not only sexism but racism.

The Canadian Labour Congress, the Ontario New Democratic Party, the 
Elizabeth Fry Society, the YWCA, and the overwhelming majority of Canadians 
are not wrong in opposing privatization of family law under religious 
tribunals which do not recognize the heterogeneity of ethnic and religious 
minority groups. They do not identify religious aspirations for a better 
world with parochial institutions that too frequently encourage passivity 
and acceptance of the evils of this world. Those who trumpet religious 
arbitration as does Fidler have yet to answer June Callwood’s question, “If 
in cases where Sharia Law conflicts with Canadian law, then Canadian law 
will prevail, then why not have Canadian law in the first place?”

But, even more significantly, Fidler identifies the Islamic religion with 
the political aspirations of oppressed ethnic communities including those 
from Islamic countries. However, what feeds the militant politicization and 
growing national identity and collective consciousness of many of these 
communities in Canada and elsewhere that have immigrated from Islamic 
countries is not their Islamic identity but rather anger at their exclusion 
from society by racism and at imperialist escapades by America, Britain and 
Israel. It is the domestic and international policies of these countries 
that fan the progressive and anti-colonial consciousness in the 
communities. For a person who purports himself to be a Marxist, Fidler 
ironically commits the same mistake that the colonists do and that the 
French Government has been doing for decades. He misidentifies Islam as the 
source of the anger within these communities and attempts to tame it to 
local (Canadian) legal standards. He will be no more successful in this 
regard then the French state whose pretence of equality and tolerance of 
Islamic communities is being consumed in the rebellion of youth yearning 
for equal treatment in real life and not only in law.




--

www.marxmail.org





More information about the Marxism mailing list