An Islamic court?
Why not?
 Aug 28, 2004, on Opinion page
The Globe and Mail

An Islamic court is planning to open in Ontario, and no less than the Muslim Canadian Congress, a secular group, is opposing it as a form of ghettoization that will harm the Muslim community. A group of feminist lawyers also wants the Islamic tribunal barred from opening, for fear women will be coerced into accepting unequal justice. And many in the broader community share their fears.

Such fear is understandable, given the horrific record of some of the world's Islamic courts and regimes, especially in their treatment of women. But the opponents are wrong not to give the Islamic Institute of Civil Justice a chance.

Freedom of religion is a basic Canadian value. For this reason, no one raises a fuss when Jewish and Christian courts resolve civil disputes over business, property and divorce in Ontario. People who observe a faith have the same rights as secular Canadians to settle their disputes in their own way, within certain boundaries.

Those boundaries are set out under Ontario's Arbitration Act of 1991. "In an arbitration, the parties shall be treated equally and fairly," says Section 19.

In other words, by operating pursuant to Ontario law, the Islamic tribunal may offer more protection, not less, to women in the Muslim community. There is nothing to stop any group, faith-based or otherwise, from setting up their own tribunals for resolving problems. Indeed, some Muslims have already been using arbitrators to settle disputes under sharia.

The act provides core principles to be followed. Participation in the arbitration, as opposed to the court system, must be voluntary. (It should be stressed that this arbitration applies only to civil matters. Criminal cases are the sole preserve of the state.) The courts have the right to intervene to prevent unequal or unfair treatment of the parties.

These principles may make it difficult for an Islamic tribunal to deal with family issues, such as inheritances, which have favoured men under Islamic law in other countries. One troubling possibility is that the women could be asked to waive their rights -- as adults do in other contexts all the time. Decisions weighted against women would not be enforceable in the courts, if the women changed their minds and refused to accept their terms; but if the women were isolated and came under pressure or did not understand their rights as Canadians, they could be vulnerable to abuse.

One answer is to insist on mandatory pre-tribunal counselling, so participants understand their rights. Marion Boyd, a former New Democrat cabinet minister, is reviewing the 1991 arbitration law at the request of the Ontario government, and may provide some guidance in this area. Ontario need not stand by and let vulnerable individuals be coerced into accepting unfair terms, if that is how matters unfold. Since the tribunal is to be run pursuant to Ontario law, it needs to be fair, or else face a constitutional challenge and the possibility of collapse.

But there is no reason to expect that the Islamic institute will be run as if the Taliban had set up shop in Ontario. Mumtaz Ali, the founder of the Islamic institute, has said that Ontario law will take precedence, and that child-custody cases will not be part of the tribunal's mandate.

Imposing a form of prior restraint would be a disastrous mistake. It would tell Canada's 600,000 Muslims, as law-abiding a community as any other, that the country is so afraid of their faith-based norms and values they must be denied the rights that others have.

It is a touch ironic hearing that Tarek Fatah, the spokesman of the Muslim congress, is urging the state to deny his own people what the Jews are permitted. Mr. Fatah seems to want Canada to follow Turkey's model, and impose secularism on his people. That is not Canada's way.

"Canada is founded upon principles that recognize the supremacy of God and the rule of law," says the very first line of the Charter of Rights and Freedoms. This is a country that respects freedom of religion.

Those who fear fundamentalism should accept that deep religious expression is not necessarily a sign of militancy or extremism. Besides, fundamentalism, in its peaceful manifestations, cannot be squashed by state edict. The Islamic civil tribunal may yet send a message that Muslims can be who they are and still be as Canadian as anyone else.