to the Arbitration Act
as recommended by The Islamic Institute of Civil Justice
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.”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.
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 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.(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…
First, Canada needs no lessons from racism plagued England on how to deal fairly and equitably with all its citizens.(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)
Star (a local
newspaper) excerpt from a report