Wednesday, December 10, 2003

Sharia Law Arbitration in Canada

All those who think religion matters should applaud the initiative of the Islamic community in establishing its own Sharia law tribunals in Canada. Such "religious rule administration" is well established in Canada and allowing arbitration to bind those who agree to such rules is a good thing.

We have marriage tribunals in Catholicism, various kosher decision-making authorities in Judaism and assorted rule-making authorities for Protestant denominations. Isn't this an extension of that aspect to Islam? Any religion or social group is able to agree to this "religious rule arbitration" and that is a good thing.

Believers, religious or non, ought to be able to do so amongst themselves outside of judicial review (except for narrow circumstances discussed below) or what is diversity and tolerance about?

Given the growing skepticism many have about developments in law and politics in Canada (and the West generally) in relation to religion and the anti-religious direction of many Western States, ought we not to welcome the recognition of "internal rules" and the governance capacity of religions?

I would much rather have Christian things decided by Christians than some judge who is likely both ignorant about them and powerful. In Ontario recently a judge's decision to completely ignore the internal rule-making authority of a Catholic Bishop (in the Durham Catholic School Board "gay prom partner" case - - which is on appeal) is worrying. The attempt there is to extend the law and therefore the State to what ought to be an "internal" matter for the authority of the separate school Board (protected by the Constitution as that right is). A very bad thing.

One can see this kind of developed "secularism" almost daily in France where the principle of "laicité" is used to restrict religions from proper access to the public. In France it is in the open and generally said to be the result of the "contest" between Church and State. In Canada, such a dominance of religion, is largely hidden, not expressed as a victory of this kind but just as present a threat to religions. Secularism, an anti-religious ideology started formally in England in the 19th Century, goes hand in hand with the whittling down of religious powers. So here I welcome the extension of recognition to Islamic arbitration.

The sole exceptions to having a complete exclusion of the courts from decisions of such religious tribunals would be regarding rules of exit from and fair application within religious community tribunal proceedings. There must be freedom of belief such that one can exit a community without fear of reprisal, confiscation of property etc. and confidence that, with respect to procedures before such tribunals, rules of natural justice etc. are followed in relation to all internal proceedings. This would have to be reviewable by appeals to the courts.

Beyond those two areas I think courts should mind their own business.

Iain T. Benson©