A few years ago, the Canadian province of Ontario introduced the Ontario Arbitration Act for civil matters in order to relieve pressure from its heavily backlogged courts. Under the Act, both parties to a dispute must agree to arbitration and, if mutually acceptable, people can use a religious framework. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

Jewish religious courts known as “Beit Din”, and “Sentencing Circles” for aboriginal peoples were established under the Act. So when the Islamic Institute for Civil Justice suggested having arbitration tribunals based on Sharia law, they were not breaking new ground. However, other religious or cultural arbitration tribunals will depend on moral guidance to reach a fair and reasonable compromise. With Sharia tribunals, there will be no compromises. Instead, Islamic scholars will make a decision based entirely on the Sharia law which might not be in the best interest of the parties involved. If the Islamic Institute’s proposal is implemented, there will be tremendous pressure for Muslims, especially Muslim women, to agree to arbitration under Sharia law. Given the bias of Sharia law towards men, Muslim women will be at a disadvantage. This will lead to a de facto system of parallel laws for one group of citizens.

According to the Institute, Islamic arbitrators will be able to settle matters on contracts, divorce and inheritance. It is worth noting that Sharia law puts women at a serious disadvantage in the latter two categories. Although the Institute insists that child custody cases will be out of its jurisdiction and decisions will be made by the Canadian courts in the best interest of the child, there is concern that Muslim women will be pressured into following the Sharia law on custody issues as well.

The Islamic Institute for Civil Justice was established in October and its mandate is to explore ways to implement Sharia law via arbitration tribunals. The current council has 50 members which includes 10 women. The Institute plans to establish arbitration tribunals across the country. The 600,000 Muslims now in Canada will then have the legal option to settle civil arbitration cases under Sharia law rather than Canadian law. The question arises as to whether members of the Muslim community will feel free to reject Sharia arbitration tribunals and its decisions.

The Ontario Arbitration Act stipulates that all parties involved accept the decision reached. The courts will not approve a decision if one party doesn’t agree. Once a ruling has been accepted by the courts, it is binding and there is no appeal. Thus, if the Sharia law is implemented, decisions made by Islamic tribunal and accepted by the courts will be enforced. This will lead to the disturbing situation of the Canadian courts and police acting as administrators of Sharia law.

The courts will not uphold agreements if they violate Canada’s Charter of Rights and Freedoms. No one in Canada expects to see the extreme sections of the Sharia law applied, such as stoning or the cutting off of hands for theft. But the acceptance of Sharia law, even in an attenuated form, in a democratic country such as Canada gives it credibility. With its decision to accept Sharia law in civil arbitration cases, Canada is helping legitimize the aim of fundamentalist Muslims to enforce their archaic, cruel, and discriminatory system of justice throughout the world.

Sheila Ayala, Humanist Association of Canada