Everybody take a valium, in the words that the great cartoonist Aislin put in René Lévesque's mouth the morning after the Parti Québécois won the 1976 Quebec election. Let's just read it a little more carefully, shall we?
The basic idea is that Muslims (
or anyone else) would be able to submit civil disputes -- CIVIL disputes -- to an arbitration board that agreed, before hearing the case, to apply a particular set of rules.
We are currently free to submit our civil disputes to an arbitration board that decides cases by flipping coins, or reading the entrails of chickens, if we so desire. We can also ask our mothers to decide who gets which piece of cake.
The development that is significant in this is that the civil courts will now automatically enforce arbitral awards.
Syed explained that until recent changes in the law, Canadian Muslims have been excused from applying Shariah in their legal disputes.
Arbitration was not deemed to be practical because there was no way to enforce the decisions. Syed said the laws have recently changed with amendments to the Arbitration Act.
"Now, once an arbitrator decides cases, it is final and binding. The parties can go to the local secular Canadian court asking that it be enforced. The court has no discretion in the matter.
Use of such arbitration boards will be
entirely within each individual's discretion. A Muslim who had a civil claim against another Muslim and who did not like his/her chances before an arbitration board that applied Shari'a would simply institute an action in a court, and not request that the other side agree to arbitration instead, and not include a Shari'a arbitration clause in any contracts s/he signed. If either party to a contract or dispute did not agree to submit disputes to Shari'a arbitration, then they would not be submitted to Shari'a arbitration.
The only difficulty that I do think might be foreseeable is that individuals might be pressured into making or defending claims in arbitration under Shari'a when they would prefer to go to court. As the article notes, Canadian Muslims who consider themselves to be bound to observe Shari'a have been exempted, by their religious authorities, from doing so, because those rules could not be enforced here previously. Now, pressure from religious authorities and community leaders could mean that they would waive rights or remedies that they would have in the judicial system.
On that point:
The committee is hopeful that the system will be accepted by the Muslim community at large, and in particular, Muslim women. There was only one woman present at the convention. Bibi Zainob Baksh attended in her capacity as president of the Ladies' Muslim Organization. She pointed out that there has been a mediation service in the past but it folded when it failed to attract Muslim women. She is of the opinion that if the present initiative comes to fruition, women will participate "later" in the process.
These boards really are not going to be able to order that people's hands be cut off, y'know. They're going to be making awards of monetary damages, perhaps settling estate disputes, that sort of thing. They will have absolutely NOTHING to do with criminal law.
And the jurisdiction of the courts is not going to be completely ousted. I believe that this is the Ontario statute in question:
http://www.canlii.org/on/sta/cson/20030327/s.o.1991c.17/whole.html2. (1) This Act applies to an arbitration conducted under an arbitration agreement unless,
(a) the application of this Act is excluded by law; ...
46. (1) On a party's application, the court may set aside an award on any of the following grounds:
... 3. The award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.
... 5. The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.
... 8. An arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias.
9. The award was obtained by fraud.
The good parts of this? The people quoted in the article note some:
- court proceedings are 'foreign' to some cultures, to which the publicity and slowness are distasteful and for whose members they cause distress -- and there is no reason that the host society should not accommodate those people's feelings in private matters;
- this is an opportunity to increase cohesion within the disparate Muslim community.
I would note, on the latter part, that increased cohesion can have a *beneficial* effect for the larger Canadian community, in that there may be greater recognition of legitimate authority within the community on the part of members of that community, and this could result in greater influence on, say, young people within that community, and ultimately
more rather than less successful integration of those young people into the larger community.
The sociological theory/practice is a little complex, but essentially newcomers to a society tend to do better when they have strong ties within an organized subcommunity of ethnocultural/linguistic affinity. Enabling individuals in the community to apply their own rules to
private matters, which is what civil disputes are, so long as no public policy of Canada is violated (e.g. as long as sex/race/religion equality rights within the procedure are respected), could benefit everyone.
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