At
no other time have Ontario courts been as backlogged as today, according
to Ontario's auditor in his October 2003 report. The sentiment was
echoed by Ontario's chief justices at the 2004 opening session of the
provincial court.
Given
the situation, one would expect that anything that may ease the backlog
would be welcome. Ironically, recent efforts by the Islamic Institute of
Civil Justice to formalize alternative dispute resolution (ADR) have met
strong opposition from within and without the community, opposition
verging at times on Islamophobia.
Right
wing commentators and news outlets had a field day. "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?" Even the usually sober
Globe and Mail got in on it, with a front page story titled
"Tribunal will apply Islamic Law in Ontario."
Efforts
to formalize Islamic alternative dispute resolution have met strong
opposition. |
|
Within
the community of more than 650,000, opinions on the proposed ADR range
from embracing it wholeheartedly to opposition for fear that the
decisions will be biased against women. In fact, the International
Campaign for the Defense of Women's Rights in Iran held a panel
discussion entitled, "Sharia tribunals in Canada and women's
rights," on March 7, 2004. The press release for the event,
endorsed by about half a dozen women's rights and humanist groups,
claimed that "this attempt [to set up this tribunal] will make it
possible for political Islam to gain legal credibility to attack women's
rights."
Other
communities have successfully implemented ADR procedures with much less
fanfare and scrutiny. For instance, rabbinical courts, or Beth Dins,
dealing with business and matrimonial issues have been functioning in
North America for some time.
The
existing Canadian legal framework allows parties to civil, family, and
religious disputes to opt for ADR, and thereby resolve their differences
using their own parameters, be they religious or otherwise, in a more
feasible and culturally acceptable manner. This trend toward ADR will
greatly benefit the general public by easing the burden on the judicial
system and saving tax dollars.
With
ADR, Muslims would simply be reaffirming their rich tradition of
arbitration (tahkim), mediation (wasatah), and
conciliation (sulh). The tradition, the underlying assumptions of
which differ from those of the Western model, has continued from the
time of the Prophet. In fact, R. Jennings, in his Kadi Courts and
Legal Procedures in the 17th Century Ottoman Keysari, wrote:
Muslihun
(those who help negotiate compromise and reconciliation) were regular
features of the court. Often, litigants reported to the court that Muslihun
had negotiated sulh between them, indicating that a compromise
had been accomplished away from the Court.
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. (An-Nisaa’ 4:35).
Of
course, contrary to the impression left by some misinformed observers,
any decision rendered by a tribunal or a panel of mediators would be
subject to appeal to the courts, and would have to be consistent with
the supreme law of the land, the Canadian Charter of Rights and
Freedoms.
Critics
contend that unfair decisions will rarely come to light, given that
women will cave in to social pressure. The concern is valid, given the
insular nature of the community, but should not undermine the whole
initiative. In fact, Islamic dispute resolution already exists, with
people abiding by decisions that are often times crude or unfair.
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.
The primary issue of which interpretation of Islamic law will be applied
raises legitimate questions. The Shari`ah is a comprehensive legal,
ethical, and spiritual code of conduct to achieve submission to the will
of God. The discovery of these rules of conduct is attained through fiqh,
or jurisprudence. Fiqh is composed of the usul al-fiqh and the furu`
al-fiqh. Usul al-fiqh is the methodology of jurisprudence,
including the philosophy of law, sources of rules, and the principles of
legislation, interpretation, and application of the Qur’an and the
traditions of the Prophet Mohamed. Furu` al-fiqh are the
derivates, or the legal rules, which are subject to interpretation and
evolution. While agreeing on major points of usul, Muslims have
historically tolerated a wide variety of opinions with regards to furu`.
Compounding
the problem is the fact that there is virtually no formal certification
process to designate someone as being qualified to interpret Islamic
law. As it stands today, anyone can get away with issuing rulings as
long as they have the appearance of piety and a group of followers.
There are numerous institutions across the country churning out
graduates as `alims (religious scholars), faqihs (jurists)
or muftis (jurisconsults) without fully imparting the subtleties of
Islamic jurisprudence. Many are unfortunately significantly influenced
by cultural worldviews and clearly take a male-centered approach.
The
status quo in Islamic law that is far too often characterized by abuse
of women and minorities is the product of rigid interpretations shaped
by tribal and cultural norms. The pure Islamic teachings of equality,
justice, and freedom must be brought to the fore again by using
interpretations which are consistent with the spirit of Islam.
Attempting to formulate an Islamic dispute resolution process by simply
grafting the western paradigm onto existing Islamic rules will not be
fair or just. This formal ADR initiative provides an opportunity to shed
any cultural baggage and revisit some of the misinterpreted patriarchal
rulings by refocusing on the Qur’an’s emphasis on gender equality.
This
is a daunting task, one for which arbitrators, mediators, and
facilitators must be adequately qualified to issue Islamic rulings
consistent with the spirit of the Shari`ah and within the parameters of
the Canadian Charter.
Those
expending their energy campaigning against this initiative outright
would help their cause more by offering constructive input to help set
parameters and develop a transparent and just process.
Ahmad
Kutty is senior lecturer at the
Islamic Institute of Toronto (www.islam.ca),
and a regular contributor to IslamOnline’s Fatwa page.
Faisal
Kutty is a partner in the law firm of Baksh & Kutty (www.bakshkutty.com).
He is currently an LL.M. candidate in Civil Litigation and Dispute
Resolution at Osgoode Hall Law School of York University. He is also a
columnist with the Washington Report on Middle East Affairs (www.wrmea.com).
He can be reached at kutty@bakshkutty.com.
