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N.D.L.R. : Bien que le gouvernement ontarien ait fait son lit sur la question des tribunaux religieux, le débat sur la question ne s'en trouve pas, du coup, clos. Aussi, publions-nous, ici, une analyse de la question que nous a fait parvenir l'auteur Ayman Yassini. Mais tout d'abord, la juriste Myriam Jézéquel fait le point sur les nouveaux développements en Ontario.
Myriam Jézéquel, juriste
« Il n'y aura pas d'arbitrage religieux en Ontario », a annoncé Dalton McGuinty. Par cette déclaration faite le 11 septembre 2005, le premier ministre de l'Ontario a rejeté la recommandation de Marion Boyd, ex-procureure générale de l'Ontario, de modifier la loi provinciale sur l'arbitrage pour autoriser l'arbitrage religieux en vertu de la chari'a. Cette décision, qui sera suivie «aussitôt que possible » d'un projet de loi, met fin à une série de manifestations organisées au Québec, au Canada et en Europe contre le rapport Boyd déposé en décembre 2004.
Ce rejet de l'idée d'un tribunal islamique s'accompagne de la volonté d'interrompre l'activité de tous les tribunaux religieux existants dans la province.
Rappelons qu'à présent, les catholiques, mennonites, juifs, Autochtones et membres des Témoins de Jéhovah ont déjà bénéficié de la Loi sur l'arbitrage pour résoudre des litiges civils et familiaux (divorce, garde d'enfants, héritage) sans passer par les tribunaux.
L'arbitrage religieux menace «notre terrain commun », a plaidé Mc Guinty devant la presse. Cependant, «les Ontariens auront toujours le droit de solliciter l'avis de toute personne en matière de droit familial, y compris un avis religieux. Mais l'arbitrage religieux ne tranchera plus de questions de droit familial », a précisé M. McGuinty
Ayman Yassini*
Although the place of the Chari'a law in society is being hotly debated in Quebec and the rest of Canada, very little is known about the Chari'a and its place in society.
The debate began in 1991, when Ontario was exploring ways to ease the burden of a slow and backlogged court system. The Arbitration Act was changed, allowing "faith-based arbitration", where members of religious communities could use the guiding principles of their religions to settle family disputes such as divorce, custody and inheritance outside the court system. Once both parties agree to go through the process, the tribunal's decisions are binding.
In the fall of 2003, the Islamic Institute of Civil Justice in Ontario announced its intention to conduct arbitrations according to Islamic personal law as authorized by the arbitration act. The institute's president, Syed Mumtaz Ali, implied that Muslims would be required to use this chari'a court if they were to be regarded as "good Muslims".
Many Muslims reacted strongly against this exclusionary comment. They noted that the use of religious laws would place women in a very vulnerable position. Women might be coerced into using religious law in the arbitration process, depriving them of some of the rights that are enjoyed by other Canadian women.
Because of the strong public reaction to this announcement, the Ontario government asked the province's former attorney-general, Marion Boyd, to review the arbitration process with respect to family law and inheritance. After an extensive consultation with over 50 interest groups, Boyd submitted her report, recommending arbitration, even arbitration based on religious law, as long as it complies with the Ontario Family Law Act.
However, the report seems to ignore a number of fundamental realities, which render its recommendations unrealistic.
First, the report refers to Muslim principles and religious laws (Sharia) as the foundation of the arbitration, ignoring the complexity of Chari'a laws, and the historical, sociological and legislative transformations that have taken place in the Muslim world during the past century.
Chari'a law is a comprehensive code of God's commands and recommendations for human guidance. The sources of the Chari'a are found in the Koran, the Sunna (prophet's practices) and ulama jurisprudence determined through community consensus and analogy. Traditional Islamic political theories argue that the purpose of government in Islam is to preserve the chari'a and to enforce its dictates.
Islamic jurisprudence in civil matters evolved over the centuries, with different schools of thought, some more rigid than others. Would the Ontario arbitration process adopt the more rigid Ibn Taiymiah school of thought, as is followed in Saudi Arabia, or the relatively more tolerant Malki tradition, as in Egypt, or the Shia version, as is applied in Iran? Whose version of the Chari'a law are we to accept? Afghanistan, Saudi Arabia, Malaysia, Nigeria, Tunisia, Iran or Syria?
Second, the report mistakenly concludes that there is a clash between "accommodations of minority groups... balanced against a firm commitment to individual autonomy." I believe the real conflict is not between individual rights and group accommodation, but between secular and religious moral codes.
By definition, religious codes define social behaviour in moral terms. As the YWCA of Toronto indicated in its submission to Marion Boyd, "in the name of religious freedom we wind up tolerating the oppression of those deemed by their particular community to have no legitimate claim to equality rights because their identity and conduct are seen through a moral lens", such as women and ethnic minorities. "A rights framework shortcuts this elusive determination through transparent, if highly imperfect, principles that do not shift from moment to moment or religion to religion. It has proven crucial in providing access to fairness for groups previously seen to be 'less equal'."
Third, well intentioned as it might be, the report states that it is easier for some people to discuss personal problems with those who share a common cultural identity and values. In response to that argument, Alia Hogben of the Canadian Council of Muslim Women suggests that informal mediation could play the same role. It is necessary to recognize that the Ontario or Quebec legal frameworks are not to be in keeping with every belief system in society.
Multiculturalism values the diversity of the immigrant society by accepting differences. Allowing cultural communities their own arbitration structures might give the impression of recognition of diversity. In reality, however, it will lead to an isolationist policy of keeping cultural communities apart from the mainstream Canadian society.
Finally, the debate over religious-based arbitration is not about right or wrong; it is not an issue of religious tolerance and freedom. It is about the privatization of public institutions. Those who advocate that their freedom of choice means having a separate religion-based legal system also advocate having private religious schools, funded with public money.
By allowing religious laws and institutions to settle family disputes through binding arbitration, and as a substitute to the Ontario family law court system, the Ontario government is abdicating its responsibility to govern.
The debate over religious-law tribunals has deeply divided the Muslim community and caused serious concern among women's groups and children's advocates. The Boyd report reflects a serious lack of understanding of the complexity of religion and the diversity of Islam and Muslims.
The introduction of religious law as a substitute for state laws is detrimental to the well being of all Canadians. Ontario should apply at home what Canada is trying to promote in the Muslim world — the development of a civil society, governed by universal and secular laws, which are inclusive and advance the values of human rights, equality and freedom of choice.
* Ayman Yassini is the author of Religion and State in the Kingdom of Saudi Arabia. He was Commissioner and co-ordinating member at the Immigration and Refugee Board of Canada from 1994 to 2004.
