Faith-based arbitration in Western Australia

I couldn’t find the article online, but courtesy of the ever useful Factiva, here’s an interesting piece from today’s West Australian on the issue of faith-based arbitration and dispute resolution.

New body to solve Muslim disputes
14 February 2007

Local Muslims will be able to resolve some of their marital, divorce, property and commercial disputes using a new mediation process that will hand down decisions based on Sharia law.

Under a controversial plan by the Islamic Council of WA, the State’s top imams will oversee the mediation hearings, conducted under the auspices of an incorporated body.

Abdul Jalil Ahmad, the religious advisor to the council, said the rulings would not override State and Commonwealth laws and could only recommend they be accepted by those involved. Mr Ahmad said the imams would not recommend Muslims take actions that breach the law and they could not hand out punishments.

But the proposal was criticised by the Ethnic Communities Council, which said it could damage the Muslim bid to integrate with the rest of society.

ECC spokesman Suresh Rajan said it was wrong to mix religion and the law. “I think Sharia law is extremely strict and to me, running two systems in that fashion is going to provide conflict, if not necessarily overt, there will be conflict of the mind of the individual,” he said. “Sharia law in its extreme form can also be fairly barbaric.” But Mr Ahmad rejected the accusation, claiming it would help prevent costly court cases. “In that way we help because in your system you cannot always resolve the problem out of court and in a friendly way,” he said.

He expected more than a dozen imams would sit on the new body, which is yet to be incorporated, and he said there were also talks to set up a national group.

Attorney-General Philip Ruddock said the group was allowed to help people settle differences out of court but would not be allowed to adjudicate disputes.

The first point is that this is old news and it seems very strange that it is appearing in the news again with even the same quote of Mr Suresh Rajan that there are now “two laws” being thrown around as it was two years ago.

Anyway, this is an example of something we addressed earlier and is, I think, generally a welcome development. Without knowing anything about the specifics of the service, I think that the best way to look at private dispute resolution processes is as an issue of freedom to contract. By freedom of contract, one means the freedom for people to agree to whatever legal conditions they wish in their contracts. For example, two Muslim business people may agree, as a condition in a contract of sale, but any disputes to be refered to this third-party body for resolution. As long as there is no coercion and it is by mutual consent, then it is difficult to see the objection to this; especially given the system is not going to be dealing in punishments but simply resolving the sorts of civil disputes that might otherwise have clogged up the courts.

There is a worthwhile discussion of the pros, cons and mechanics of these sorts of systems in the comments of the earlier post.