By Prof. Abdul Wahid Sheikh Osman
Islamic Arbitration Courts in America & Canada?
In a 2004 interview, Suad Ahmad, a Somali-Canadian woman, told DeNeen L Brown of The Washington Post that she thought the lives of all Muslims should be governed by Islamic law. "It's something nobody can change and we must follow," she told the reporter "We came to Canada and we become lost … We need our own court and we need our own law," She said, "That's what I believe." she added. Another Somali woman told the same newspaper that she preferred to live by laws based on her religious beliefs. "No stealing, no drugs, no sex without marriage. No pork. This is our law," she said, adding, "A man may take a second or third wife if he is able to support them financially. Yes, there is jealousy, but it is allowed under Shariah."
Evidently, thousands of other Muslims in Canada and elsewhere in the West share their belief. In fact, some believe that the idea of establishing Shariah tribunals in Canada was bolstered by the efforts and support within the Somalian refugee population who embraced the idea after they discovered a precedent for arbitration by religious law in the Jewish courts of Canada. According to its supporters, the proposed Canadian Islamic Arbitration system or Darul Qada (an idea that Ontario premier Dalton McGuinty disallowed on Sep 11, 2005) would arbitrate using Islamic family law but within the confines of Canadian law. Those laws include: The Charter of Human Rights (Section 27 of the Constitution), the Family Law Act of 1986.The Arbitration Act (Bill 42, Ch. 17, the Statutes of Ontario 1991).
Driven by cultural or religious considerations and, at times, overwhelmed by the lengthy processes and associated costs or procedures in the regular courts, many consenting Somalis and other Muslims in the West resort, with regularity, to the local Mosques and Imams to seek Islamic mediation or arbitration in family disagreements, inheritance, business disputes, marriage and divorce issues.
A Muslim Imam in the Minneapolis/St Paul area, for instance, receives average 4-5 cases of this nature in a typical week. The services of the Mosques and Imams in this area are very effective and are quite instrumental in defusing or resolving disputes. Despite its enormous successes, however, the mediation sessions at the Mosques are often informal, operate without uniform or standardized practice or procedures, and are closed to the public and its scrutiny. Further, and more importantly, the decisions or awards by the Imams, except the issuance of marriage certificates, are not enforceable in the secular judicial courts. The above shortcomings have pushed many Muslim legal experts in the West to seek ways to standardize/ legalize the informal use of Islamic Law as an alternative dispute resolution tool, an idea that led to calls for establishing Islamic Arbitration tribunals.
We shall, in what follows, briefly examine both the legality, as well as the practicality of the proposed Arbitration Courts under Islamic law and American law, the strong and sustained opposition by Women’s Rights activists and Human Rights groups, notwithstanding.
The Islamic Law Perspective
One of the major criteria according to which Islamic law classifies and differentiates between elements of the surrounding environment for the sake of Muslim believers is through the vast system of textual/canonical legitimization (Al Nusus Al Sharciyah). This legal framework, so central to the Islamic jurisprudence, bifurcates all actions by a Muslim into Islamic and Un-Islamic.
The answer to the question whether Islam-sanctioned Arbitration tribunals may be established in the West depends on another central question; do the major schools of Sunni Shariah jurisprudence (the Hanafi, Maliki, Shafi’i and Hanbali schools), as well as the Shi’ite Jafari school, actually reject the partial implementation of Islamic law in non-Islamic jurisdiction?
There are two differing juristic views espoused by the classical Muslim jurists regarding the partial implementation of Shariah. Here is the summary of the views on the subject:
A large number of Muslim jurists are of the view that partial application is impermissible regardless of location and circumstances. This view maintains that Shariah law, penal system and other sanctions are designed to be applied holistically and, therefore, cannot be implemented in the absence of Islamic jurisdiction (territorial and legal) in which sovereignty belongs solely to Islam. This view relies primarily on the following verses in the Qur’an:
- "… Do you then believe in a part of the Book and disbelieve in the other? What then is the reward of such among you as do this but disgrace in the life of this world, and on the day of resurrection they shall be sent back to the most grievous chastisement, and Allah is not at all heedless of what you do…" Qur’an 002.085.
- " You who believe! Enter into submission one and all and do not follow the footsteps of Shaitan; surely he is your open enemy…" Qur’an 002.208.
Establishing Islamic Arbitration in the West, according this view, runs contrary to the Islamic injunctions contained in the above verses and is, therefore, impermissible. Ibn Kathir, the Shafi scholar and the known authority in Tafsir, has strongly defended this view in his famous work Al Bidayah Wa Al Nihayah.
The positions vaunted by Ibn Kathir, among others, and the conceptions evidently exhibited by this group, do not, of course, exhaust the range of juristic opinion on the subject. There is another point of view adopted by number of mostly modern Muslim Jurists. The starting point of discussion by the group is that the application of some aspects of Shariah, such as the family law, is not necessarily contingent on the full implementation of the rest. They invoke the following Quranic verse to support their position.
- " So keep your duty to Allah as best ye can, and listen, and obey, and spend; that is better for your souls. And whoso is saved from his own greed, such are the successful" Quran 064.016.
In addition, the group argues that there is tremendous variance in the interpretation and implementation of Islamic law in Muslim societies today. They cite the example of countries such as Egypt, Jordan, Pakistan, Sudan, Yemen and others where the implementation of Islamic law is largely confined to the area of Personal Law.
Finally, they strike comparison between the experience of Muslim Minority in the early Meccan period of Islam and the contemporary Muslim communities in the West as two similarly situated minority groups living under the sovereignty of foreign legal system.
The current advocates of Islamic Arbitration in the West echoed the second view. Sayed Mumtaz Ali, a Muslim Barrister and the president of the Canadian Society of Muslims, was asked; why are you confining your campaign to Family issues rather than other aspects of the Shariah? He replied: "Confining our campaign to those areas where Canadian judicial System could accommodate Muslim Minority concerns is far more feasible, realistic and practical than other areas of Shariah …… it is an opportunity to live your Islam to the best extent possible in the Canadian Democratic context"
The recent calls for establishing Islamic arbitration with enforceable awards have sparked controversy with opposing groups organizing conferences and rallies in major Western capitals. The most serious arguments against the Islamic arbitration are summarized in two points:
- "In Canada, there are secular laws, policies and procedures already in place in handling the personal or family law matters for all the citizens regardless of faith, color, or ethnic background. The introduction of Islamic law, the argument goes, is contrary to the tenets of the modern secular laws and liberal democracy "
In response, the pro-Shariah groups argue that; other faiths have similar tribunals and there is the Canadian Charter’s guarantee of freedoms for all.
2. "The Islamic law is unfair to women and they will face pressure from the community"
The Shariah supporters have responded to this allegation by stating that the idea is founded on stereotypes. Moreover, they point out that there is a requirement of a minimum number of women participating at each level of the arbitration process, and that the parties are voluntarily seeking Islamic Arbitration.
The American Law
The Uniform Arbitration Act (Last Revisions Completed Year 2000) is the relevant law that regulates the applicable arbitration processes in the US. It lays out the requirements and procedures of valid arbitration in the US. The Act simplifies and facilitates the establishment of arbitration proceedings that supplement the US judicial system.
The Prefatory Note by the Drafting Committee of the Act contains the following language:
"There are a number of principles that the Drafting Committee agreed upon at the outset of its consideration of a revision to the UAA. First, arbitration is a consensual process in which autonomy of the parties who enter into arbitration agreements should be given primary consideration, so long as their agreements conform to notions of fundamental fairness. This approach provides parties with the opportunity in most instances to shape the arbitration process to their own particular needs. In most instances the RUAA provides a default mechanism if the parties do not have a specific agreement on a particular issue. Second, the underlying reason many parties choose arbitration is the relative speed, lower cost, and greater efficiency of the process. The law should take these factors, where applicable, into account"
The Act has 33 Sections; each Section has various requirements to render an arbitrated decision enforceable in a US court with appropriate jurisdiction. Some sections specifically refer to the US judicial system (Sections 2, 7, 11, 14, 17 &19).
The following Sections have requirement for arbitration but do not mention the US judicial system (Section 1, 3, 4, 5, 6, 8, 9 10 &15).
Pursuant to the above sections, any arbitrated decision or award, regardless of who arbitrates it, may be enforceable in the US judicial courts provided itconform to notions of fundamental fairness, and is issued after full compliance with the requirements of the Uniformed Arbitration Act.
In examining the above Sections of the law, we can conclude that; it is entirely unclear whether or not the US courts would invalidate an award obtained through Islamic Arbitration. Moreover, there is nothing in the Uniform Arbitration Act that expressly prohibits the establishment of arbitration proceedings that supplements the US judicial system.
The Jewish Beth Din in America
The Jewish Beth Din in America provides the perfect example of arbitration proceedings that supplement the US court system. The Beth Din serves as an official rabbinical court; an authoritative forum of Jewish law (halakhah) and its judgments are recognized worldwide. Headquartered in New York, it exists in almost every state in the US. It serves the Jewish community in the United States as a forum for obtaining Jewish divorces, confirming personal status and adjudicating commercial disputes stemming from divorce, business and community issues. The Beth Din has extensive rules and procedures structuring itself in a manner favorable to the enforceability of its decisions in the appropriate secular courts. The US secular courts view the Beth Din as valid arbitration. In addition, the US courts, in general, consider the Beth Din’s decisions as binding arbitration.
In Mikel v Scharft, (Sup. Ct. Kings Co. 1980), a New York opinion described the Beth as follows:
"The Beth method of arbitration has the imprimatur of our own judicial system, as a useful means of relieving the burdens of the inundated courts dealing with civil matters".
We have mentioned the major legal views regarding the proposed Islamic Arbitration among the various legal systems and schools of Islam. Though the entire matter is far from simple and does not lend itself easily to generalization, it may be said in sum that; the only way in which supplement arbitration proceedings with enforceable awards could conceivably be established, under US law, would be through the fulfillment of the following conditions:
- It must prove itself competent and professional to the US judicial system—it must compose rules and procedures that incorporate every requirement in the Uniform Arbitration Act. Further, it must structure itself like the Jewish Beth Din. The rules and procedures must state that all the proceedings would be conducted in accordance with US laws so that awards are enforceable.
- Rules must require written voluntary consent, impartiality, and a method of arbitrator selection, ensure parties are heard, permit attorney representation, and make awards in writing and properly record them.
- In the case of the Islamic arbitration, arbitrators must be knowledgeable in not only Islam but must also be trained in Islamic law or (Fiqh). Also, they must be well versed and experienced in American law in general. Arbitrators should also receive training and certification from the American Arbitration Association.
- Finally, if/when the process to establish is completed; it must find ways to overcome any possible public relations battle.
Abdul Wahid Sheikh Osman is an Adjunct Professor at the University of Minnesota Law School. He is also a regular legal affairs contributor to Hiiraan Online and can be reached at:
E-mail: [email protected]