veiled4allah: clarifying Muslim abritration in Canada

Via email, Ikram Saeed let me know about Family Arbitration Using Sharia Law: Examining Ontario's Arbitration Act and its Impact on Women (PDF).

This article does a lot to clear up some of the misunderstandings and misrepresentations that surround this issue.

Ontario has an Arbitration Act that allows the parties in a civil dispute to use arbitration as a form of alternative dispute resolution rather than taking their case to court. The parties can select anybody they want as an arbitrator and the abitrator can use any method to arrive at a decision on the settlement, as long as the decision is not contrary to law or public policy. The parties may pick an arbitrator who is known to both of them and trust the arbitrator to use their best judgment. Or they can select as an arbitrator someone who promises to make their decision according to certain principles.

It is this that makes it possible for the parties to choose as an arbitrator someone who promises to make their decision according to Islamic principles. It is also possible to choose an arbitrator who promises to make their decision according to the principles of Jewish law, and in fact the Jewish Beis Din or religious tribunal has been doing this since 1982.

So the problem can hardly be Muslims wanting to resolve their disputes according to religious principles, when Jews have been doing so for more than 20 years (I should also point out that arbitration is a voluntary process and it is completely up to the parties to choose what form the arbitration will take; this is not an attempt to force Canadian courts to use Shari'a law or for non-Muslims to be subject to it, or any such ridiculous claim as I've seen made in some places). Or rather, that would only be a problem if some religions are more equal than others.

A more genuine concern is whether some parties, particularly women, may be victimized by Muslim arbitration. Again, a lot of the commentary on this is distorted, assuming that there is one single interpretation of Islam or that all interpretations of Islam are hostile to women. As the article points out, neither of these facts is true.

In fact, the real problem is that the Arbitration Act itself does not provide enough safeguards against injustice. It would be equally easy for an unjust decision to be made by a secular arbitrator, or during arbitration according to Jewish or other religious law. The article provides some examples of unjust non-Muslim cases.

The solution is not to say that Muslims shouldn't be able to use religious-based arbitration if they want to (or, if religious-based arbitration should be forbidden, it should be forbidden for all religions), but rather to put safeguards in place so that no arbitration, including a Muslim one, can lead to an unjust decision.