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Canada’s Muslims should be allowed to use Shariah lawWednesday, September 15, 2004 6:14 pm
Ottawa Citizen, 09/15/04 Part of this concern is natural, given the undeniable and inequitable application of the shariah in many countries. Part of the problem, as well, concerns a general ignorance of Islamic law -- its history, principles and nuances -- that permits intellectual chauvinism to pass for fair comment. The shariah is not, as some think, "immutable." The spirit of Islamic law -- its universals such as justice, equity and mercy -- is unchangeable. The letter of the law, however, varies depending on whether its application would promote or violate the letter's spirit. There is a rich body of principles that govern the application of law to ensure that law is equitable, gradual, moderate and sensitive to individual and communal context. It is precisely for this reason that many Canadian Muslims support Islamic-based arbitration. Given current faith-based arbitration initiatives by the Jewish and Christian communities, why would the Muslim community not be entitled to do the same? Permitting members of religious minority groups to have the option of resolving civil disputes according to their own religious doctrine within a framework that is respectful of the Charter of Rights and Freedoms is consistent with the Charter's own guarantee of freedom of religion. In Muslim communities, the line between mediation and arbitration is porous. The reality on the ground is that many Canadian Muslims resolve their disputes by referring them to local community leaders. Opponents of Islamic-based arbitration, far from protecting vulnerable parties, are ensuring that such ongoing processes are not standardized or scrutinized and do not operate openly and with accountability. Pure pragmatism indicates that a significant group of people want to, and will, resolve their personal disputes quickly, quietly and in keeping with deeply held religious convictions. By denying this, opponents are keeping their eyes shut. A number of critical concerns, however, are justified. The consultations of Marion Boyd, former attorney general of Ontario, about the use of private arbitration to resolve family issues under Ontario's Arbitration Act are timely. Currently, the act does not protect those who invoke it. As it stands, Ontario's Arbitration Act has been used primarily by sophisticated commercial actors and their lawyers. Although family issues were initially contemplated as within the purview of the act, they are latecomers to the current process. And the act reflects this. There are no safeguards to ensure all parties are acting voluntarily, especially the vulnerable; there are no mechanisms to ensure that parties are fully apprised of their rights under the act; and the act does not specify any standards for arbitrators. Remedying these deficiencies for all types of faith-based arbitration is possible through appropriate legislative amendments. First, the voluntary nature of the process can be assured by insisting that both parties receive independent legal advice and be informed of their right to appeal the arbitration decision once rendered, and of their right to challenge the arbitrator's ruling under section 13 of the act. Second, immigrant and minority women need to be educated through a proactive education campaign using culturally and linguistically accessible literature about their rights and options in the case of family-law disputes. Third, significant efforts must also be made by the provincial government, in partnership with minority communities, to craft a regulatory scheme for the selection, education and training of qualified arbitrators. Finally, to ensure that participants and their representatives are able to make informed decisions about the arbitrator in their dispute, the provincial government should create a registry that would make available a "sanitized" copy of the decisions of all arbitrators. What about a number of differential rights under Islamic law? One example usually cited is that men typically inherit more because they are responsible under Islamic law for the financial support, maintenance and care of their families. Using analogies under Canadian law, these differential rules need not necessarily preclude the initiative. It is common, for example, for parties to give up some rights to attain other goals. For example, many beneficiaries do not contest wills for the greater priority of family unity, while parties might agree to a marriage contract regarding an unequal separation of marriage assets. The barbarians are not at the gates and liberalism is not under siege. But it is time to have a very Canadian, civilized dialogue. |
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