AND IT’S ONE...TWO...THREE...WHAT ARE WE FIGHTING FOR?

Canadians Allow Islamic Courts To Decide Disputes (DeNeen L. Brown, Washington Post, 28/04/04)

Suad Almad, her head wrapped in a blue silk scarf, was discussing her beliefs with a group of friends. She said fervently that she thought the lives of all Muslims should be governed by Islamic law, known as sharia.

"It's something nobody can change and we must follow," said Almad, who came to Canada from Somalia, then engulfed by war, more than 12 years ago. "We come to Canada and we become lost . . . We need our own court and we need our own law," she said, her voice strong and certain. "That's what I believe."

Almad and thousands of other Muslims, taking advantage of a provision of the law in the province of Ontario, can now decide some civil disputes under sharia, including family disagreements and inheritance, business and divorce issues, using tribunals that include imams, Muslim elders and lawyers. While it is less than full implementation of sharia, local leaders consider it a significant step.

Muslim promoters of sharia arbitration said that no cases had been decided but that the process is set. Islamic leaders created an Islamic Court of Civil Justice last fall and that organization, in turn, has chosen arbitrators, who have undergone training in sharia and Canadian civil law, according to organizers and participants.

Sharia is based on the Koran, which includes the teachings of Islam and revelations by the prophet Muhammad. According to Muslim beliefs, the Koran provides the divine rules for behavior, including rules about marriage, business and inheritance. Muslims must abstain from stealing, lying, killing, adultery and drinking alcohol.

Some Muslim leaders in Canada said that there should be no controversy about the new arbitration process, but some opponents expressed concern that people might feel coerced into accepting sharia-based arbitration. Government officials said that the decision to submit to such a process was subject to mutual consent.

A 1991 Ontario arbitration law permits such arbitration according to religious principles, just as rabbis in Jewish communities and priests in Christian communities help to resolve civil disputes, said Brendan Crawley, a spokesman for the Ontario attorney general.

"People can agree to resolve disputes any way acceptable," Crawley said in an interview. "If they decide to resolve disputes using principles of sharia and using an imam as an arbitrator, that is perfectly acceptable under the arbitration act." [...]

"A court will not enforce a decision in violation of the Charter of Rights," Crawley said, referring to the Charter of Rights and Freedoms, part of the nation's constitution. He also said there were limits to arbitrators' powers. They cannot, for example, rule on matters regarding third parties. "The rights of children cannot be arbitrated," he said.

Yes, they can, and that is just one of several rubs. This story has been flying around the blogosphere of late, generally with headings as misleading as the headline here. In fact, “Canada” has done nothing at all. It has not established any new courts or adopted any new laws. This has little to do with multiculturalism and is not a government initiative. What has happened is the Muslim community has organized to take advantage of a general arbitration law that allows parties to consent to having disputes resolved by private arbitration according to rules the parties agree upon. Rulings will be enforced by the courts if the parties consented, there was due process and there is no violation of criminal or constitutional law. Many lawyers consider arbitration to be a welcome, civilized alternative to the procedural and discretionary madness they often meet in civil courts.

As other faiths, particularly Orthodox Jews, have long operated tribunals under this regime, it seems impossible to reject access to Muslims without discriminating openly against Islam itself. The principle concern is the plight of women and how realistic it is to speak of consent for traditional, isolated, resourceless and ill-informed parties whose substantive rights are from what even the most traditional North American would see as basic. While the civil courts could exercise judicial review, the practical question is whether the victims could ever get there. Yet, as this article shows, Muslim women are far from speaking with one voice here, and those non-Muslim groups sounding alarm bells are closely associated with feminist anti-faith and anti-marriage forces. Also, whether Muslim women are better off in civil courts is very debatable. They still have to go home at the end of the day.

Social conservatives will be sorely tested by this one. Resolving disputes privately within community and faith, rather than appealing to the state, is a bedrock of healthy self-reliance and community resiliency. But this is Sharia and let’s not kid ourselves. The life of a Muslim woman that challenges her husband’s, father’s or community’s authority can be a terrifying and dangerous hell.