Washington Report on Middle East Affairs, May 2004, pages 70-71

Islam in North America

One would therefore expect that anything that might ease the backlog would be welcome. Instead, however, recent efforts by the Islamic Institute of Civil Justice to formalize alternative dispute resolution (ADR) have met strong opposition from within and outside the community, at times verging on Islamophobia.

Right-wing commentators and news outlets had a field day. “Canadian judges soon will be enforcing Islamic law…such as stoning women caught in adultery,” screamed one headline. Another read, “Canada Allowing Sharia Barbaric Laws?” Even the usually sober Globe and Mail got in on the act with a front-page story titled “Tribunal will apply Islamic Law in Ontario.”

Among the more than 650,000 Canadian Muslims, opinions range from wholehearted endorsement to fear the decisions will be biased against women. In fact, the International Campaign for the Defense of Women’s Rights in Iran held a March 7 panel discussion titled, “Shariah tribunals in Canada and women’s rights.” The press release for the event, endorsed by about half a dozen women’s rights and humanist groups, claimed that “this attempt [to set up this tribunal] will make it possible for political Islam to gain legal credibility to attack women’s rights.”

In a position paper on the tribunal by the Canadian Council of Muslim Women (CCMW), posted on its Web site, CCMW president Alia Hogben writes:

“We see no compelling reason to live under any other form of law in Canada, and we want the same laws to apply to us as to other Canadian women. We prefer to live under Canadian laws, governed by the Charter of Rights and Freedoms, which safeguard and protect our equality rights. Although the judicial system is not perfect, we know that there are mechanisms for change.”

This leaves the inaccurate impression, however, that Muslim Canadians would be forced to refer matters to the tribunal and would have no Charter protection. In fact, any ADR process would be voluntary, and both parties to any dispute must participate willingly. Moreover, any decision rendered by a tribunal or a panel of mediators would be subject to appeal to the civil courts and would have to be consistent with the supreme law of the land, the Canadian Charter of Rights and Freedoms.

Other Canadian communities have successfully implemented ADR procedures.

While cautious about the initiative put forward by the Institute, Syed’s group is in favor of formalizing ADR within the community to resolve disputes amicably.

Indeed, other Canadian communities have successfully implemented ADR procedures—with much less fanfare and scrutiny. For instance, rabbinical courts or Beth Dins dealing with business and matrimonial issues have been functioning for some time in North America. The Islamic ADR process would be in line with these institutions.

Canada’s existing legal framework allows parties to civil, family and religious disputes to opt for ADR and thereby resolve their differences using their own parameters, be they religious or cultural. Contrary to the impression left by many commentators, criminal and regulatory matters would fall outside the bounds of such tribunals. The trend toward ADR, moreover, greatly benefits the public at large by easing the burden on the judicial system and saving tax dollars.

Canadian Muslims would simply be reactivating their rich tradition of arbitration (tahkim), mediation (wasatah) and conciliation (sulh). The tradition, based on different assumptions from the Western model, has continued from the time of the Prophet. In fact, R. Jennings, in his Kadi Courts and Legal Procedures in the 17th Century Ottoman Keysari, wrote:“Muslihun (those who help negotiate compromise and reconciliation) were regular features of the court. Often, litigants reported to the court that Muslihun had negotiated sulh between them, indicating that a compromise had been accomplished away from the Court.”

Indeed, the Qur’an specifically refers to arbitration in the context of matrimonial disputes:

“If you fear a breach between them [man and wife], then appoint an arbitrator from his people and an arbitrator from her people. If they desire reconciliation, God will make them of one mind. God is all knowing, all aware.” (Qur’an, C4, V35).

Critics also contend that, because women will succumb to social pressure, unfair decisions only rarely will come to light. “My fear is that once these tribunals are set up, Muslims will be obliged by social pressure to use them, thereby denying to themselves many of the rights that we in the West have fought for for centuries,” said Roy Brown, president of the London-based International Humanist and Ethical Union. Aside from its patronizing tone, the concern is valid, given the insular nature of the Canadian Muslim community, but it should not undermine the whole initiative.

In fact, Islamic dispute resolution already exists, and people are abiding by decisions that oftentimes are crude or unfair. Formalizing the process will allow for greater transparency and accountability. For instance, the issue of undue influence can be dealt with by ensuring that tribunals must ensure that parties have obtained independent legal advice if required. As long as proper procedures and rules of conduct are in place, there is nothing to prevent the community from instituting a dynamic and less disruptive alternative to the adversarial civil court system.

Compounding the problem is the fact that there is virtually no formal certification process to designate someone as being qualified to interpret Islamic law. As it stands today, anyone can get away with making rulings so long as he has the appearance of piety and a group of followers. There are numerous institutions across the country churning out graduates as alims (scholars), faqihs (jurists) or muftis (juris-consults) without fully imparting the subtleties of Islamic jurisprudence. Many, unfortunately, are more influenced by cultural world views and clearly take a male-centered approach.

The status quo in Islamic law, characterized far too often with abuse of women and minorities, is the product of rigid interpretations shaped by tribal and cultural norms. The pure Islamic teachings of equality, justice and freedom must be brought to the fore again by using interpretations which are consistent with the spirit of Islam. If it is a simple exercise of grafting the Western paradigm onto the existing Islamic rules, Islamic dispute resolution will be neither fair nor just. The formal ADR initiative, however, provides an opportunity to shed the cultural baggage and revisit some of the patriarchally misinterpreted rulings by refocusing on the Qur’an’s emphasis on gender equality.

To take on this daunting task, arbitrators, mediators and facilitators must be adequately qualified to issue Islamic rulings consistent with the spirit of the shariah and within the parameters of the Canadian Charter.

Those expending their energy campaigning for the outright rejection of this initiative would help their cause more by offering constructive input to help set parameters and develop a transparent and just process.

Faisal Kutty, a partner in the Toronto law firm of Baksh & Kutty (<www.bakshkutty.com>), is currently an LL.M. candidate in Civil Litigation and Dispute Resolution at Osgoode Hall Law School of York University. He can be reached at <kutty@bakshkutty.com>.