Having faith in the law

From The Toronto Star [March 13, 2004]

With gratitude for permission to reprint this from the author
 

by Ron Csillag

A new Islamic judicial panel in Ontario sparks concerns about how Shari'a law will be applied But faith-based tribunals have long brouight a spiritual dimension to resolving conflicts.
"God commands you to hand back your trusts to their rightful owners, and when you pass judgment among men, to judge with fairness." ['Qur'an, 4:58]

"If cases come before your courts that are too difficult for you to judge, whether bloodshed, lawsuits or assaults, take them to the place the Lord your God will choose." [Deuteronomy, 17:8]

You'd 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. "Apparently, it doesn't bother the Canadian government that an ancient and barbaric system of laws could take precedence over [its] own," 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 Americandaily.com 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 in 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. Retired lawyer Sayed Mumtaz Ali, who is spearheading the initiative, says one or two cases were scheduled to be heard last month .

Meantime, Canada's 70,000 Ismaili Muslims, who belong to a branch of Shia Islam, continue to use their own highly organized system of community-based dispute resolution that dates back 14 centuries.

Jews and Christians across Canada also avail themselves of religious-based dispute resolution in their faith communities, combining healthy doses of biblical justice with modern pragmatism.

In fact, faced with the daunting prospects of clogged secular courts and their intimidating formality, pricey lawyers and a system rooted in go-for-the-jugular adversary that produces clear winners and losers, more Canadians are choosing to submit to legal services provided by their religious communities.

A University of Alberta study has noted how well these ancient bodies fit into today's trend toward mediation. Courts certainly welcome approved alternative dispute resolution, or ADR, whether religious in character or not, because it eases their dockets and cases are dispatched nearly always with the same fairness, but minus any cultural differences.

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.

Still, some Muslims worry the new Islamic judicial initiative will discriminate against women, especially in matters of family law, inheritance and divorce, which tend to favour men. For example, Islamic family law dictates that male heirs receive a greater share of inheritance than females (in order to look after women); that only husbands may initiate divorce; and that in divorce cases, fathers are usually awarded custody of daughters.

The development has caught the attention of the International Campaign for the Defence of Women's Rights in Iran, which has mounted an online campaign against the Islamic tribunals here. "We strongly believe that this move is anti-women...and will push back women in society in general," says the group, which calls the Ontario Shari'a courts "anti-freedom, anti-women, misogynist, anti-modernist and strongly racist."

As recently as last weekend, the group hosted a conference in Toronto denouncing the Islamic courts. Panellist Farzana Hassan Shahid of the Mississauga-based group Muslims Against Terrorism said that while she's not opposed to the dispensation of Shari'a in Canada, "as I am a proud Muslim who subscribes to the belief and value system of Islam," she finds herself in a quandary "due to the painful realization that the Shari'a models in various Islamic countries have failed miserably to deliver justice to the most vulnerable members of our society, namely women and children.

"The Qur'an is equitable and revolutionary, whereas Shari'a is draconian, regressive and discriminatory," Shahid said.

Others have expressed concern about which interpretation of Shari'a will be employed in Canada, as Islamic law is vast and complex, varying widely from country to country.

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.

The panels, he explains, will be presided over by two "experienced" female mediators under his direction as president, and another member who serves as secretary. Ali says he and the secretary are qualified arbitrators.

Ontario courts are required to enforce agreements negotiated voluntarily through an arbitrator as long as they are not unreasonable or contrary to such statutes as the Divorce Act, the Criminal Code and the Charter.

Besides, says Ali, "Muslim law dictates that in case of conflict on any legal point between Muslim law and Canadian law, the local Canadian law shall prevail. Period."

The institute will limit itself to disputes involving marriage, commerce and civil contracts no criminal or child custody cases much the same way as Jewish courts of law have done for thousands of years.

Mandated by the Torah, these courts, known as a Beit Din (house of law), hear cases about every other week in the Greater Toronto Area, says Rabbi Reuven Tradburks, who coordinates intake for the Toronto Beit Din.

Hearings take place before three dayanim (judges who are rabbis). The complainant and defendant choose one each, and the two judges pick the third.

Two centuries ago in Europe, a quarrel or the besmirching of a good name would be fodder for a Beit Din, but no longer. Today, Tradburks says, it functions as a binding arbitration panel that resolves contractual disputes, monetary damages, restitution of property and fallout from failed marriages, all through the prism of Halachah, or Jewish law.

A Beit Din may issue summonses and call witnesses. Lawyers are permitted, but only as advisers. Proceedings move briskly, with little adversity, and with a success rate that approaches 100 per cent. The complainant pays a $125 administrative fee and the actual session costs $150 per side.

In a celebrated case in 1999, an Ontario judge turned over a lawsuit among three Toronto rabbis and a Montreal kosher meat distributor to a Beit Din.

Under the guidance of their spiritual leader, the Aga Khan, Ismaili Muslims have run ADRs across Canada going back to 1987 to resolve matrimonial and civil disputes in which at least one party is an Ismaili.

Known as Conciliation and Arbitration Boards (CABs), they are part of a worldwide Ismaili network of panels that offer both mediation and arbitration in matrimonial and commercial disputes.

These panels do not apply Shari'a strictly speaking, but rather Qur'anic principles of "respect, harmony, unity, fairness and justice, all of which are consistent with Canadian values," says Nurjehan Mawani, a former chair of the national CAB in Canada.

About 70 per cent of all cases are resolved, she says.

The Catholic and Anglican churches in Canada both operate ecclesiastical courts across the country, but they are convened mainly for internal spiritual wrangles or to discipline priests. Since 1946, marriage tribunals in the Roman Catholic church in Canada have ruled on whether a union may be annulled should either party wish to remarry in the Church.

Conflict is not inherently bad, says the United Church of Canada's 26-page Dispute Resolution Policy Handbook, replete with rules, forms and theological affirmations. The church's ADR service provides about 90 mediators across the country who deal mainly with internal disputes.

As the church sees it, conflict can be an agent of constructive change. Trouble is, a secular courtroom reflects an un-Christian ethic of domination and control.

Ultimately, says the church, Jesus' teachings are less concerned with such temporal concepts as damages and guilt, than with the restoration of right relationships between people, and between people and God.