I looked but didn’t see another thread on this.
An opinion piece from a credible source:
Someone tell me why this isn’t a bad, bad, bad idea.
Well for one thing, this isn’t some government sponsored initiative – a private group is intending to start using those guidelines to settle disputes between people who come to them and then present this to the courts. However, I can’t see a procedure that deliberately weights women less than men passing Section 15 of the Charter of Rights and Freedoms.
So they plan to do this but I can’t see it surviving a challenge.
Just as one cannot enter into a legally binding contract with terms which are in violation of the law, I seriously doubt that the Canadian government will enforce arbitration settlements that violate Canadian law.
From that first link:
Huh?
Islam isn’t a race. Any more than “catholicism” is, or “mormonism”. I think these “lawyers” that supposedly said this need to go back to law school and study a bit longer. They obviously didn’t quite catch it right first time.
To complain about sharia hints at racism?
Fuck off.
I fail to see the problem.
This isn’t Canada being run by Sharia law. Canada already has laws by which parties can agree to legally binding arbitration. An Islamic organization is urging Muslims to come there for arbitration of civil matters.
Their decisions can be enforced by law only because the parties have signed a contract agreeing to abide by the arbitrators’ decision. Failure to follow the decision is breech of contract. At that point, the arbitrator or the other party can take the contract to an average, secular court and get them to enforce the contract.
If I and Joey Hypothetical agree that he will sell me a widget for one hundred dollar, sign a legally binding contract stating those terms, and he doesn’t give me the widget after I pay him, I can also turn to the court and have the contract enforced.
Rabbinical courts do exist. A Beit Din is composed of three rabbis. I would pick a rabbi. Joey would pick a rabbi. Then, the two rabbis would pick a third. Naturally, these courts base their decisions on Jewish law. Rabbinical courts aren’t common in the US. US law doesn’t discriminate Jews, and the government hasn’t sponsored any pogroms. But, in the days of shtetls, and extra taxes you didn’t draw the government’s attention to what the Jews were doing, or give them an excuse to abuse your or another Jew.
If some national Jewish organization attempted to popularize Beit Dins, and had the parties sign a contract to abide by their ruling, we’d pretty much have the situation described in the OP.
Except, Doc, that Sharia law has inherent biases against women; their testimony counts for less than that of a man, for example.
And as the second article I linked to suggests, saying “they both agree to arbitration” is a bit of a bad joke when one of them might be, say a 22 year old girl/woman who has been raised to believe she is less than a man, raised to believe she must submit, and facing the ostracism of her neighbors if she tries to appeal the imam’s decree.
There are some things you don’t outsource. Justice is one of them.
If this was a bunch of fundamentalist snake handlers wanting to live under Mosaic law, there’d be outrage.
Jojo I can’t believe I’m defending Al Jazeera, but you need to look again.
Note the use of double quotation marks. These signify that those are the exact words spoken by Ayala.
[QUOTE]
“It is being sensationalised. It is part of the general hysteria that’s out there since 9/11, the Talibanization of (North) America,” said Irfan Syed, chair of the Toronto-based Muslim Lawyers Association[/QUOTW]
Again, double quotation marks are used to show that this is precisely what Syed said.
Single quotation marks would signify that a statement had been paraphrased or shortened. No quotation marks at all are used in that sentence. The reporter is not quoting anybody, just summing up their feelings.
Yes, it should say bigotry or prejudice rather than racism. But, the mistake was made by the reporter, not any lawyer. Considering that English is likely not the reporter’s native language, I’ll let them go on this one.
I’ve got to start the Seder now. Have a good night y’all.
I know the reporter is summing up their feelings but both the reporter and the lawyers feelings are wrong.
Another problem is the areas of jurisdiction mentioned - divorce, for example.
You are not divorced unless the state says you are divorced, no matter how many “islamic courts” say you are divorced. If your marriage hasn’t been legally ended then you are still married for the purposes of tax, inheritance, remarriage, children etc.
Under islamic law a man can divorce his wife by saying"I divorce you, I divorce you, I divorce you" and that’s it. Doesn’t matter if there’s kids or whatever, he can walk away. It is much harder for a woman to divorce a man. So let’s say they all gather together in a room and the man says “I divorce you” three times.
Great, wonderful. I hope they all have a fun time in the room. But they’re not divorced. So what’s the point?
I do not know if divorce is one of the things it would cover, but the way I read the articles, the divorce would hold; if both parties agree to arbitration, the arbitration is binding.
Which is fine for oil companies, but something rather different in a child-custody case.
If anyone has a cite explaining how appeals would work for this, or some sort of official info, I’d appreciate it.
Justice is “outsourced” all the time, it’s called Alternative Dispute Resolution. Ever read a story about a labor union and a company submitting their contract dispute to mediation or arbitration? That’s ADR. Ever watch “The People’s Court”? Also ADR. ADR is an agreement between the parties to settle their dispute outside of the courts, and to abide by the results.
The Islamic Institute of Civil Justice is offering a form of ADR that fits the religious preferences of a portion of the population. I suspect that not far fewer knickers would be getting twisted if this wasn’t Muslim ADR. For example, you can find attorneys that pledge to use a specifically Christian context for ADR, and there’s an Institute for Christian Conciliation that certifies ADR “Conciliators” in a Christian context. I’ve noted no outrage about that.
If you and I have a dispute, we can use any ground rules we want to resolve the dispute. We can agree to use Muslim law, Christian law, the rules of the Church of the SubGenius, or the laws of the Invisible Pink Unicorn. As long as none of those rules are flagrantly violative of good public policy (e.g., we agree that the all-wise and merciful IPU will recognize the victor in a trial by combat as aggrieved party in the dispute, and thus the prevailing party in our dispute), then there is no reason that the ADR rules are inherently “bad”.
If the ADR rules are against public policy, then the courts can overturn the judgments. This is how you “appeal” a ADR judgment. But I see nothing aside from a rather biased website that says that this is necessarily going to be Taliban-style Sharia. Sharia is not monolithic, just as Islam is not a centrally-controlled monolithic religion. It also has tough standards for evidence, including: “the necessity of four eyewitnesses, with women’s testimony counting no less than that of a man” (emphasis added).
And some people may use ADR in addition to “normal” civil procedures. To address Jojo’s point about the divorce. I know a Jewish couple – he’s a rabbi, she was previously (civilly) divorced. In order for them to get married, she had to receive a Get from a Jewish religious authority. Similarly, John Kerry had his previous marriage annulled by Catholic authorities as well as the courts. A Canadian Muslim couple may decide to use the IICJ for religious reasons, in addition to the civil divorce.
In summary, there may be reasons this is bad for certain people, but fine for others. The information available in your cites suggests that IICJ may be no worse or better than any other ADR forum.
Oh, sorry. I forgot the obligatory IANAL, YMMV, this is not legal advice, take this only on the advice and direction of you physician disclaimers. Mea Culpa.
Well, if this is indeed the case, I would be much relieved.
Except we do outsource justice when its a private matter between the parties. We always have done. There’s nothing new in this.
Disputes between the individual and the state, or disputes between individuals which have a public dimension (e.g. divorce), have to be resolved using the mechanisms established by the state.
But if you and I have a dispute which affects us and nobody else, we can settle it any way we want. We can toss a coin. We can step out the back, Queensbury rules, three rounds. We can ask a friend to decide. We can ask an expert to decide. We can pay an expert to decide.
And we can agree to accept the outcome of that procedure as binding. And the state will accept, recognise and enforce our agreement.
Unless . . .
. . . the outcome of our agreed procedure is itself illegal (“UDSS must sell his children into slavery and give the proceeds to furt”).
. . . the outcome of our agreed procedure is against public policy (“UDSS must cut off his own right arm as a token of remorse for what he had done to furt”)
. . . your consent, or mine, to be bound by the agreed procedure is vitiated by lack of capacity (I’m 12 years old), lack of true consent (there was a shotgum waved at somebody), etc.
. . . (arguably, because I’m not aware of any precedent) the procedure itself is contrary to public policy. The point that a woman’s evidence is discounted (assuming it is true) is a significant one, but does that mean we should never accept the decision of an Islamic court? What about a case in which both the parties, and all the witnesses, are men? So I think it remains to be seen to what extent the Canadian courts will recognise and enforce judgments of the Islamic tribunals. Of course, the point won’t even arise unless somebody who has participated in an Islamic tribunal refused to abide by the outcome, and the matter ends up in the civil courts.
Jewish religious courts, which have been mentioned elsewhere in this thread, operate in the UK and their decisions can be enforced in the civil courts, within these limits. Similarly the decisions of Catholic church courts (although not of Catholic marriage tribunals, since marriage has to do with public status as well as private rights) and, of course, commercial arbitration tribunals. The enforceability of these decisions rests on the consent of the parties. It’s open to someone who has participated in the process subsequently to challenge the validity of their own consent to participate, but if you’re going to start from the assumption that Muslim women lack the capacity to consent to this process, without actually examining the facts of any parrticular case, isn’t that a little . . . patronising? Demeaning, even? Isn’t the logic that Muslim women lack the capacity to enter into any kind of contract, at least with Muslim men?
I don’t know much about canadian law but I would think that any decision made in arbitration would only hold if it did not violate existing canadian law. There may be precedent for religious tribunals (the jewish ones) but I’m willing to bet that the decisions they make don’t violate canadian law. Since their decisions don’t conflict with canadian law then canadian law is happy to ignore them.
The sharia divorce rules would, however, conflict with canadian law because in order to get a legal divorce you have to fulfill certain criteria. As I recall, you have to prove irrenconciliable breakdown of the marriage and have lived apart for a period of time and so on. I can’t remember the exact details right now (this is off the top of my head) but to get a divorce there are several criteria you need to fulfill.
If you don’t fulfill the criteria then you don’t get divorced.
If an islamic tribunal divorces a couple PURELY on the grounds of the guy saying “I divorce you” three times then this can not be a divorce under canadian law because the criteria haven’t been met. You can’t say to the court “Well, we held a private tribunal and we agreed to circumvent the law”. You can’t privately agree to circumvent the law - this is a well established legal principle. If you and me decide to hold a duel and I win then I will still be tried for murder. The fact that you agreed to the duel and knew the consequences doesn’t matter. Our private agreement means nothing. We are both still subject to the law.
Private tribunals can’t be allowed to be used as a means of circumventing the law. Where would this end? Gangster tribunals in which the mafia dispense “family justice”?
(By the way, I’m just thinking aloud really - maybe canada has some law that somehow gets round all this. I’m no expert on canadian law although I would think the Charter of Rights and Freedoms would be relevant)
Just wanted to point out that while “private courts” can certainly be used to arbitrate things like a property settlement in a divorce, it can’t be used to settle things like child custody and child support.
In order for private arbitration to be legally binding, all parties must, in effect, sign a legal contract agreeing to arbitrate. But minor children wouldn’t have the capacity to agree to enter into such a contract. In addition, the courts in most (if not all) western countries must make decisions involving things like custody based on the child’s best interests. It’s true that courts will typically approve an amicable agreement reached by the parents. But that’s a far cry from abdicating their legal authority to defend the child’s interests to a private abitrator.
Inheritance poses a similar problem. For one thing, the will would have to specify that it be interpreted in light of Sharia – and probably some specific Sharia code. In a probate case, the person who wrote the will is, in a way, a party to the action. You’d probably also have to get all potentially interested parties to agree to the Sharia court’s jurisdiction, though there might be some clever way to draft around that. Even then, you’d still have to go through the formal probate procedure in order to clear off debts, etc.
If there was no will, of course, the law of intestacy would apply. I suppose you could get all interested parties to re-distribute the estate according to Sharia, but, assuming this would cause a different property distribution, this is essentially equivalent to voluntarily transfering part of your inheritance. It’s not really “law” at all.
At the end of the day, a sharia court will probably be able to settle property disputes between adults and not much else.
Well that is the next logical step.
Jeez, so much presumption, so little evidence. UDS and Truth Seeker both point out that the planned system cannot enforce illegal judgments. The original article cited by the OP states this. The IICJ founder himself states in an article on Al-Jazeera of all places that this is true. Stop jumping to conclusions. Again: The IICJ plan does not automatically mean that Canada is going to be allowing stoning of adulteresses or cutting off hands of convenience-store thieves. Sharia is not monolithic and automatically repressive, but varies from place to place and based on the study of the community and of scholars.
Jojo
I admit I am largely unfamiliar with Sharia. I agree that a bias against women is a bad thing. However, without a lot more study I can’t say for certain that this bias is held by all interpreters of Sharia.
Re Divorce
Bad example. The only reason most Jews in the USA will ever need a Beit Din is, to get divorced. It’s not much quicker than the standard divorce hearing. If the court agrees to grant a divorce, a document called a get is provided. I’ve often heard(though I suspect it’s folklore) that Jewish soldiers who thought they would be killed in battle, went to the Beit Din, got a get and gave it to their wives. As a divorcee, she would be free to remary. As the wife of an absent husband, she would have to provide a body, or wait a number of years before the Beit Din would accept that the husband was dead and agree to provide a ketubah.
Which brings me to another point. US law requires a marriage license and some signed forms. Without that, the government will not consider you married. Under Jewish law, you’re not married unless a rabbi performs the ceremony and you’ve got a signed ketubah, a Jewish marriage certificate. We’ve already got religious weddings and secular legal procedures. What’s the problem with having both religious and secular divorce procedures?
Well, the OP for one is trying not to presume. Some of the things that have been said here have made me significantly less concerned about this; but what I’d like to see is some concrete information about how this system would work. I’ve looked but not found it, and I’m hoping some kindly Ontarian (?) can explain it to me or lead me to the straight dope.
I’m not woried that there will be stonings or even “illegal judgments;” but there can be unjust judgements that are perfectly legal (e.g., custody awarded to an father who would have been ruled unfit in a Canadian court, but who can win under Sharia law).
It would work the same as they all do. By only deciding things that the courts aren’t interested in anyway.
As soon as they started to come across cases that the courts would be interested in then, by definition, the courts would be interested in it. So proper law would take over.