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Published in the 16-31 Jan 2005 print edition of MG; send me the print edition

Canadian report supports use of Islamic principles in arbitration

By Faisal Kutty

"The Arbitration Act should continue to allow disputes to be arbitrated using religious law…" concludes Ontario's former attorney general Marion Boyd in her 150-page report (http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/).

Boyd was asked by the Ontario government to review the 1991 Arbitration Act and assess whether a plan by members of the province's 400,000 Muslims to use Islamic principles in settling marital and inheritance disputes should be halted, after vociferous opposition. 

Many commentators and news outlets that did not understand the issue amplified the hysterical reaction of opponents. "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?" 

Sharia is not coming to Canada and there will be no Sharia courts. Muslims simply wished to use Islamic principles to resolve their disputes within the Canadian legal system.

Boyd's considered verdict released in December 2004 came after meeting with more than two hundred people and receiving almost forty submissions. Boyd makes forty-six well thought out recommendations, including:

  • amendments to the Family Law Act and the Arbitration Act to ensure that the mediation and arbitration agreements are legally treated in the same manner as marriage contracts and separation agreements; 

  • calling for regulations to ensure proper record keeping, mandating written decisions, and training of arbitrators;

  • imposing a duty on arbitrators to ensure that parties understand their rights and are participating voluntarily;

  • providing for greater oversight and accountability, including empowering courts to set aside arbitral awards for various reasons including unconscionability, inadequate financial disclosure or if a party did not understand the nature or consequences of the arbitration agreement;

  • public education and community development;

  • expanded appeal possibilities; and

  • further policy analysis to determine whether additional safeguards are required. 

Critics have come out guns blazing, calling the report a "betrayal" of women and "racist." Nonsense. Boyd, with impeccable feminist credentials, has balanced the rights of Muslims who wish to voluntarily resolve their private disputes using religious principles with the basic rights of vulnerable segments within the community. In other words, the recommendations ensure that there is substance to religious rights while simultaneously protecting a vulnerable minority group member's basic rights as set out in the Charter of Rights and Freedoms.

Many Muslims wish to use arbitration or tahkim which has also been a part of Muslim tradition. 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).

Boyd's report merely affirms the Constitutional right to religious freedom, equal treatment under the law, multiculturalism and ensures that Ontario is in compliance with Canada's international obligations. Indeed, Article 27 of the International Covenant on Civil and Political Rights, to which Canada acceded on May 19, 1976, imposes a positive duty on a state to assist its minorities to preserve its values by allowing them to enjoy their own culture and to profess and practice their own religion. 

The forty-six recommendations addressed the legitimate concerns raised and ignored the alarmist rants of some opponents who sought to exclude Muslims from using existing Ontario law. The Arbitration Act allows parties to settle their disputes using any principles they wish, whether they be Christian, Jewish, Muslim or otherwise. Other communities have successfully implemented Alternative Dispute Resolution initiatives with much less hue and cry. For instance, rabbinical courts or Beth Din's dealing with business and matrimonial issues have been functioning for some time in Ontario. Christians and others have also made use of the Act.

Some have criticized Boyd's position that independent legal advice (ILA) can be waived by a party if they wish. As it stands now, nobody can be forced to obtain an ILA for any legal matter-- though this may be moot as this leaves it open for courts to set aside any agreements or arbitral decisions. Forcing ILA would be great for the legal profession but - as pointed out by the Law Society and Bar Associations -- would seriously restrict the ability of people to bargain freely or settle issues without a lawyer and would clearly represent unnecessary intrusion by governments into the private domain. 

I can appreciate that many are concerned about the exploitation of Muslim women. However, the discourse is now bordering on being racist. For instance, critics contend that there is no way to ascertain true consent, as Muslim women will be forced to cave in to social pressure and accept unfair decisions. The concern is valid but is not restricted to Muslims and can be partly addressed by imposing duties on arbitrators. Moreover, the situation may be no different in the legal setting where the vast majority of cases are settled out of court and where parties compromise for less than their legal entitlements in many cases without legal advice. Indeed, a growing number are now resolving their disputes, including family matters, themselves or through paralegals who in many cases act for both parties without any consideration as to whether the parties appreciate what rights they are giving up. 

Our system of justice is based on the premise that individuals with legal capacity can make their own decisions and agreements even if these may not be the "correct" choice according to the majority. Should we not allow Muslim women to sign marriage contracts, separation agreements or settle any disputes without independent legal advice (ILA) while everyone else can exercise this choice?

A paternalistic attitude toward the Muslim community will not solve the issue of social pressure and may in fact alienate many. Moreover, as Boyd quite accurately points, precluding arbitration would not only limit people's options for resolving their disputes, it may also "push the practice of religious arbitration outside the legal system altogether, thus limiting the court's ability to intervene to correct problems."

Alternative dispute resolution is already being practiced within the community and people are abiding by decisions. These decisions, in some cases unjust and crude, are treated as if they were the word of God and therefore binding. Formalizing the process will allow for greater transparency and accountability. As long as there are proper procedures and rules of conduct in place there is nothing preventing the community from instituting a dynamic and less disruptive alternative to the adversarial court system. 

Boyd has kept intact the integrity of the alternative dispute resolution system while protecting the vulnerable and ensuring that "back alley arbitrations and mediations" are minimized as much as possible. The Ontario government should accept Boyd's report and move on.

Faisal Kutty is a lawyer with the firm of Baksh & Kutty (www.bakshkutty.com) and general counsel for the Canadian-Muslim Civil Liberties Association. He can be reached at faisalkutty@yahoo.com.
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