While the debate over tribunals based on sharia law has polarized the Muslim community, a Muslim group says a survey shows faith-based arbitration is already under way and working well in Canada.
Many Muslims turn to mediators in their community for help in resolving marital disputes, child custody and inheritance issues, according to the survey of six Muslim community leaders and scholars in Nova Scotia, Ontario and Manitoba.
The Council on American-Islamic Relations Canada, known as CAIR-CAN, which conducted the survey, recommends building safeguards into Ontario's faith-based arbitration system to ensure that participation is voluntary and informed, and that arbitrators are qualified.
"The reality is that on the ground, faith-based arbitration is already going on in an informal way," noted Riad Saloojee of CAIR-CAN. "Pure pragmatism suggests that the best way is to regulate it and ensure it is transparent rather than to outlaw it. Let's bring it out into the light."
CAIR-CAN submitted its recommendations to Marion Boyd, the former NDP attorney-general, who is reviewing the use of private arbitration, including religious-based arbitration, at the request of the Ontario government.
Ontario's 1991 Arbitration Act provides for Muslims, Jews and members of other faiths to use their religion's principles to settle matters such as divorce, inheritance and custody issues.
CAIR-CAN says the use of the word sharia is inappropriate because a faith-based tribunal is not a full-fledged Islamic court, but is limited in its jurisdiction and constrained by Canadian law and the Charter of Rights and Freedoms. It recommends parties receive independent legal advice before committing to alternate dispute resolution, and suggests the government help select and train qualified arbitrators.
B'nai Brith Canada, a Jewish human-rights organization, supports the inclusion of sharia-based tribunals under Ontario's Arbitration Act provided that the act be amended to require that all participants in religious-based arbitration obtain a certificate of independent legal advice. This would ensure that participation is voluntary and litigants are fully aware of their rights. B'nai Brith also has recommended that the government require these certificates to be reviewed by Ontario Superior Court judges before they enforce the tribunals' decisions.
The Muslim Canadian Congress, however, believes certain principles in sharia are inherently discriminatory and divisive. Sharia is based on the Koran and interpretations of it can vary widely. Under sharia, male heirs receive a greater share of an inheritance than female heirs; husbands, not wives, may initiate divorce proceedings; and in divorce cases, fathers are generally awarded custody of adolescent daughters.
Mr. Saloojee notes there are different schools of scholarship within Islam, and room for flexibility. "It is not cast in stone. Although there is differential treatment of women and men, overall Islamic law does provide equity," Mr. Saloojee said.
Shahina Siddiqui, president of the Islamic Social Services Association of Canada and one of six Muslims who participated in the CAIR-CAN survey, has counselled scores of Muslims over the years, helping them to resolve issues of inheritance and child custody. "In some cases, I've had Muslim women who had gone to other Muslim mediators and weren't happy with the outcome. There is lots of room for interpretation," she said. "You can't apply the letter of the law if it compromises the spirit of the law."