An Amendment 
to the Arbitration Act
as recommended by The Islamic Institute of Civil Justice

by Syed Mumtaz Ali

Some crtiques after Boyd submitted her report . . .


The Institute recommends an amendment to the Arbitration Act – thanks to the discriminative, inflammatory and sensationalized coverage by certain sectors of the media. The recent ongoing debate in the media has erupted like a volcano since October, 2003 when the Canadian Society of Muslims announced that they have set up an arbitral tribunal which will apply Muslim law, or any other law designated by the parties, the anti-Islamist factions of the media – either religiously or politically motivated – have decided to wade into the debate with their own mantra: Islam is evil and so are Muslims, which was aptly put by Haroon Siddiqui, the Toronto Star’s editorial page editor emeritus, and a well-deserved recipient of the cherished Order of Canada. According to him, this debate is about the estrangement of some women from their faith, or at least, from Muslim culture of patriarchy. It is also about the world of Islam, more particularly, the role of women in it, and the debate on it involving Muslims and non-Muslims, as well as Islamophobes who continually use it as a stick to beat Muslims. It is about the rocky, post-9/11 relationship between the West and the Muslim world. It is about how Europe mistreats its minorities but immigrant North America integrates them into the common enterprise of building a mutually beneficial society, Canada more so than America.  He quotes Sheila Ayala of the Humanist Association of Canada as stating: “Nobody thinks the extreme sections of Shariah will be carried out. But still, if Canada accepts this, it means it will give credibility to the Shariah around the world.” That admission shows how the emotional debate on the proposed religious arbitration for Muslims is not about Ontario alone. 

This prompts this argument, among other arguments, that Islam is great, its implementation is bad; the Qur’an is equitable, whereas the man-made Shariah is not.

“Global issues and agendas thus weigh down the Ontario debate. The media’s sensationalist and sometimes shoddy reporting has not helped,” says Siddiqui and who would argue with him on this unfortunate reality. 

Who is not aware of the dangers of media - both in its destructive powers and seductive charms? But we are also conscious of its great potential to assist in understanding and explaining the differences between disparate parties. Its capacity to help bridge is immeasurable. 

In this respect, Professor Akbar Ahmed, the author of Postmodernism and Islam, asserts that the present encounter, with its universal Western culture and pervasive technology, is perhaps the most forceful onslaught on Muslim civilization yet. Precisely because it is so amorphous and because it appears in the most unexpected places, Islam appears so threatened and vulnerable. The VCR and the TV and the Internet need no passport or visa. They can invade the most isolated home and challenge the most traditional values, and in their character and origin they are the part and parcel of Western civilization.

As to the relationship between Islam and the West, the perception of Islam as a threat to order, the darkness, is never far from the Western mind. So says His Highness the Aga Khan, who is known to be sympathetic to the West. With Islam encompassing a large area of the world with significant populations, Western society can no longer survive in its own interest by being ill-informed about the Islamic world. They have to get away from the concept that every time there is a bush fire, or worse than that, it is representative of the Islamic world, they damage both themselves and their relations with the Islamic world because they are sending erroneous messages back. 
There is, what he calls, a “knowledge vacuum,” and it is hurting everyone. The Muslims cannot, therefore, even in their modern or post-modern age, ignore or disregard what traditionalists, have believed to be necessary. More specifically, for the traditionalists, the larger message of Islam, rather than the narrower sectarian or personal quibbles, is of paramount importance. As a result, they believe both in the universal message of God as well as in the interfaith dialogue. 

Seyyed Hossein Nasr has pointedly underlined this need in the following way:

“There is also the very important task which lies ahead for Muslims to try to make peace at a theological level, not only a political level, with other religions in the West, to extend a hand, which Islam has always done, to Judaism and Christianity and other religious.”

This need to create a better understanding and to eliminate the aforementioned “knowledge vacuum,” assumes an even greater urgency in the light of a variety of the developments, such as the debate relating to the establishment of The Islamic Institute of Civil Justice and the Muslim Court of Arbitration (Darul Qada).

How crucial is the need to fill this “knowledge vacuum” and how urgent it has become can be assessed by taking a good look at how the Canadian media behaved in the recent debate, which relates to Canadian Muslims’ sincere and courageous efforts to make peace with the West at a theological level, as suggested by Professor Nasr.

On one hand, we are providing our readers, in what follows with a tiny sampling of some media coverage for analysis. On the other hand, we will also show how certain elements of the media joined hands with Islamophobes to ruin the quality and integrity of an otherwise respectable media to the lowest level of degradation and disrespect to the whole profession of journalism.

The media coverage, for the most part, was sensational and it seemed to be exacerbated by a  'Muslim' women's group who has gained notoriety by shadow-boxing a phantom enemy with an exhibition of their own overwhelming or unmanageable fear and emotional excess by some of them to such an extent that it made the government of Ontario, yes, the same most liberal minded, the most pragmatic and the most courageous and the most enlightened legal jurisdiction in the world, who made ADR mandatory, succumb to innuendo and the unsavoury threats of a ‘so-called’ world wide protest to call for a full review of the whole Arbitration Act in Ontario. Perhaps fine-tuning was due. The Institute had decided, with all sincerity, to recommend an appropriate amendment to the Act by empowering arbitral tribunals to require proof of independent legal advice, at its discretion, rather than as the remedy of mandatory legal advice, which would be overkill of draconian proportions. 

Background samples from the print media

You would have thought the Taliban decamped to Ontario by some of the reactions to the announcement late last year that a group of Canadian Muslims has set up a judicial tribunal that will implement Shari’a, or Islamic law, in this province to resolve civil and marital disputes.

Right-wing bloggers in the United States went ballistic, saying “Apparently, it does not bother the Canadian government that an ancient and barbaric system of laws could take precedence over [its] own.” Thus fumed ChronWatch, adding that the development proves “once again why our neighbour to the north is often more of a liability in the battle against Islamic extremism than an ally.’

The like-minded Web site opined, “It seems that some in the Muslim community there have every intention of instituting insane Shari’a style laws to govern its own community within Canada itself.”

Even a local columnist went off the deep end. “Have we lost our minds in Canada?” wondered the normally level-headed Marianne Meed-Ward of the Toronto Sun. “We are poised to become like the repressive Middle Eastern countries we occasionally bomb, and start enforcing Islamic Shari’a law.” 
Lost in all the hysteria were several banal truths: the newly formed Islamic Institute of Civil Justice will merely formalize an ad hoc system that has been quietly settling mundane marital and business disputes in Ontario using Islamic law for several years. 

And judges of Ontario's courts will be free to strike down any decision that is contrary to public policy, encroaches on existing statutes or violates any aspect of Canada's Charter of Rights and Freedoms. 

The Islamic panel, intended chiefly to bring a spiritual dimension to conflict resolution, is already up and running 

More Canadians are choosing to submit to legal services provided by their religious communities….
Faith communities agree that solving disputes from within is cheaper, faster and far less combative than secular courts. Disputants are more likely to feel comfortable with a system they know. And the results are private….

Ali dismisses the concerns of the Canadian Council of Muslim Women, which has said it is "gravely concerned" that the panel won't protect the rights of women. 

"Muslim women's imaginary and hypothetical concerns that they may not receive fair treatment before these panels are just baseless," he says. "Muslim women have the option to go to these panels or go to secular Canadian courts." 

Also, all those who come before a tribunal, may choose to have Muslim law or Canadian law applied to their case, Ali notes.

(Ron Csillag, freelance writer specializing in religion, Toronto Star, March 13, 2004)

“The blanket call to stop Muslims from applying their religious laws in civil disputes amounts to nothing short of religious discrimination. Those opposing the application of Shariah laws hold a very narrow understanding. Other religions and ethnic communities have been using their own personal laws to settle their civil disputes for years. No one raised eyebrows then.

Why target Muslims alone? Are Muslims the Children of a Lesser God or are they second-class citizens in Canada?

Canadian Muslims have a unique opportunity to develop a trend setting approach to the application of Shariah in multicultural settings in a globalized world which is in-sync with Islamic principles as well as the foundational and legal principles of specific countries.” 

(Mohammed Ayab Khan, Toronto Star, May 27, 2004)
The Arbitration Act, 1991, has allowed arbitral tribunals – both religious and secular – to flourish in the province, resolving such civil disputes as divorce, property division and inheritance. These tribunals operated quietly for years. But they have come under the microscope after an Islamic group announced it planned to set up tribunals based on Shariah, the 1,400-year-old body of Islamic laws…

Participants should understand that choosing to use a tribunal is voluntary, rulings can be appealed, and, most importantly, the guiding law is the Charter of Rights and Freedoms…

Meanwhile, anti-Islamists — either religiously or politically motivated — wade into the debate with their own mantra: Islam is evil and so are Muslims.

Global issues and agendas thus weigh down the Ontario debate. The media's sensationalist and sometimes shoddy reporting has not helped.

What's the way forward? 

This is a Canadian issue with relatively easy Canadian solutions. 

If freedom of religion is to mean anything, internal religious debates of all faiths are best left to the believers, so long as they are not violating the law.

It is of no help to be told that Britain rejected a request for the implementation of Shariah there. 

First, Canada needs no lessons from racism plagued England on how to deal fairly and equitably with all its citizens.

Second, what is being proposed in Ontario is not Shariah, even if its proponents [and the media] have grandly [and erroneously] called it so. They cannot impose Shariah here. All they can offer is mediation in civil disputes between two people coming forward voluntarily. This is what churches and synagogues already do. [i.e. apply the rules of law designated by the parties, as permitted by the Arbitration Act.]…

Muslim groups have no choice but to operate within the Canadian law. 

(In fact, Shariah enjoins Muslims to obey the law of the land where they live, so long as it lets them practise their religion, which is the case in Canada. The principle is based on Shari’a emphasis on al-maslaha — the common good.)

What we cannot have is one law for Muslims and another for others. Either we have the 1991 Arbitration Act available to all, or to none...

Premier Dalton McGuinty announced this week he has asked Bryant and Sandra Pupatello, the minister responsible for women's issues in his cabinet, to examine the issue in depth…Ms. Marion Boyd, a former Attorney General, is to conduct the review.

Bryant, [the Ontario Attorney General in Canada] has sensibly said he intends to look at the entire arbitrations system. Concerns raised by women about the Islamic tribunals may have set the spark for his review, but it is the proper time to give the whole system a careful study…

A government source says the review might order independent legal advice for everyone who attends a tribunal to inform them of their rights. It's not a bad idea.”

(Toronto Star editorial & Haroon Siddiqui, Toronto Star, June 13, 2004)

There is also some talk about making the independent legal advice mandatory for all parties.

In this connection, it will be appropriate to quote a 1994 ruling on the crime of vagrancy. The Supreme Court of Canada warned against making a law too broad and stringent. ‘If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principle of fundamental justice will be violated because the individuals’ right will have been limited for no reason.”

For this reason, it is the view of the Islamic Institute of Civil Justice Studies that independent legal advice requirement will be a reasonable requirement in itself but to make it mandatory is tantamount to overkill. The Institute, therefore recommends to the reviewing authorities that Section (19) of the Arbitration Act be amended by adding subsection (3) as follows:

The Arbitral tribunal may require all parties, or any one of them, to submit evidence to the effect that they have obtained independent legal advice, or have waived their right to do so, in order to ensure that they are fully aware that: a) they do have the alternate legal right to take their dispute to a court of law for adjudication, and, b) they have not been subjected to any duress or undue influence whatsoever, in voluntarily consenting to appoint an arbitral tribunal to conduct arbitration of their dispute.

The Canadian Society of Muslims has provided a substantial website that is very informative, following the Sunni-Hanafi [80% of Muslims adhere to this school of thought] perspective. Although other schools may be dealt with in passing. If you would like to see a sample of this, you may click here.

after Dec. 20, 2004

Report given by Marion Boyd to the government of Ontario, Canada on The Arbitration Act (external link)

A BBC comment before report (external link)

A Globe and Mail Report (this is Canada's national newspaper) (external link)

The Toronto Star (a local newspaper) excerpt from a report