One of the important pre-conditions of this arbitration is that it has to be voluntarily agreed to by both sides. The choice and qualifications of the arbitrators are allowed to be set by the disputing parties. The rulings of the arbitrators have to be consistent with the Canadian Charter of Rights and Freedoms and the mainstream judicial system has the powers to intervene if any of the laws of the land have been violated. The arbitrator’s decision is final and binding unless found to be in violation of Canadian law. According to Brendan Crawley, a spokesman for the Ontario Ministry of the Attorney General, "People can use any arbitrator they want and can use a religious framework if it is mutually acceptable. The Charter of Rights is the supreme law of Canada and the Arbitration Act is subject to it. If the award is not compatible with Canadian law, then the court will not enforce it. You can't agree to violate Canadian law."
The permission to set up arbitration boards was seen as a move to relieve the overburdened justice system. Hassidic Jews, Catholics and Ismaili Muslim communities have been using the arbitration option for many years. However, when in October 2003 a group of Muslims calling itself the Islamic Institute of Civil Justice held a meeting to form an arbitration board all hell broke loose. When the delegates to the IICJ conference met at the International Muslims Organizations mosque in Toronto to discuss the issue, they hardly had an inkling of what was coming towards them. A reporter from the Law Times was also present at the conference and she published a detailed report on the proceedings of the conference and group’s intentions in the journal. Syed Mumtaz Ali, a retired Canadian lawyer of Indian origin, is one of the main conveners of the proposed Sharia arbitration board. He was the first person to educate the community about this option. In interviews to the media and in his writings Mumtaz Ali said, "Islamic law obliges Muslims to follow local law, and Islamic law where possible. Under Ontario's Arbitration Act, Muslims will be able to settle disputes in matters of contracts, divorce and inheritance privately with the help of arbitrators."
He says that Islamic family law would definitely not apply in child-custody cases: "We cannot use that aspect because Canadian law is very sensitive to the interests of the child and the courts must decide custody."
He admitted that the Islamic inheritance and divorce laws tend to favor men. "Brothers and sons always get more. But it is because under the Islamic system, the man has the duty and responsibility to look after the woman," he said. Mumtaz Ali agreed that the Canadian laws can’t be violated under any circumstances and that there is no reason to fear the use of Sharia laws.
But the people opposing Sharia laws remain unconvinced. Woman’s groups like the Canadian Council of Muslim Women alleged that the proposed Sharia law board was introduced by stealth and that women were not consulted in its formation. Alia Hogben, president of the Canadian Council of Muslim Women, strongly opposes the arbitration board. "This is a very difficult position for us to be in because we are believing women," says Hogben. "But to apply Muslim family law in Canada is not appropriate."
Hogben further says, "We see this as a women's equality issue. Women are afraid they will not be `good' Muslims if they don't go along with it or that they'll be accused of blasphemy. Why, why is it happening?"
"Is it because the government doesn't want to be seen as anti-Muslim? But this is anti-women. Why should we be treated differently from other Canadian women?" she asks.
Another group calling itself International Campaign Against Sharia Court in Canada has adopted a more aggressive and anti-Islamic tone. Its coordinator Homa Arjomand, a former Muslim, believes in the strict separation of church and state. "Your beliefs should stay in your home, in your mosque, your church, your temple. We should remain a secular country with no separate rules for some groups, not when they discriminate against women."
Arjomand’s and other radical left wing groups have started a concerted propaganda campaign to attack Islamic and Sharia laws through the internet, media, pamphlets and public meetings.
Mumtaz Ali thinks that such attacks are totally uncalled for. He says that the model of Islamic law that will be used in Ontario will be a “Canadianized Sharia.”
"It will be a watered-down Sharia, not 100 per cent sharia. Only those provisions that agree with Canadian laws will be used. If there is a conflict between the two, Canadian law will prevail."
Other Muslim scholars and writers who do not oppose the Sharia arbitration have their concerns as well. In an article published in the Law Times, Imam Ahmad Kutty and his son Barrister Faisal Kutty write: “Compounding the problem is the fact that there is virtually no formal certification process to designate someone as being qualified to interpret Islamic law. As it stands today, anyone can get away with making rulings so long as they have the appearance of piety and a group of followers. There are numerous institutions across the country churning out graduates as alims (scholars), faqihs (jurists) or muftis (Juris-consults) without fully imparting the subtleties of Islamic jurisprudence. Many are unfortunately more influenced by cultural worldviews and clearly take a male centered approach.”
“The status quo in Islamic law characterized far too often with abuse of women and minorities is the product of rigid interpretations shaped by tribal and cultural norms. The pure Islamic teachings of equality, justice and freedom must be brought to the fore again by using interpretations which are consistent with the spirit of Islam. Islamic dispute resolution if it is a simple exercise of grafting the western paradigm onto the existing Islamic rules will not be fair or just. This formal ADR initiative provides an opportunity to shed the cultural baggage and revisit some of the patriarchally misinterpreted rulings by refocusing on the Quran's emphasis on gender equality.
”This is a daunting task. One where arbitrators, mediators and facilitators must be adequately qualified to issue Islamic rulings consistent with the spirit of the Shariah and within the parameters of the Canadian Charter.”
Those expending their energy campaigning against this initiative outright would help their cause more by offering constructive input to help set parameters and develop a transparent and just process.”
Such appeals for reason have seem to be fallen on deaf ears and the anti-Sharia campaign has adopted an even extreme anti-Islamic and anti-faith stance. It is now calling for a “complete separation of religion from education for children under the age 16 (sic).” At its recent public meeting comments were not only against Islam but also against the Sikh faith for its requirement of its adherents to carry the kirpan.
As the debate continues, Ontario Attorney General Michael Bryant and Sandra Pupatello, Minister Responsible for Women’s Issues, have appointed Marion Boyd to review the arbitration process and its impact on vulnerable people in Ontario.
Boyd, former Attorney General and Minister Responsible for Women’s Issues, is expected to deliver her report by September.
The Ministry of the Attorney General and the Ontario Women's Directorate are already working to ensure that women are aware of their rights under Canadian law, including in arbitrations, and that educational materials are available in several languages.