OVERVIEW OF THE THREE RELIGIOUS TRADITIONS

Islamic Traditions

There are six principle beliefs under Islamic traditions. These principles are the foundation of life for Islam’s. They are the supremacy of God, Muhammad as the messenger of God, the Quran as the word of God, the eternal existence of angels, sin and final judgment. The fundamental belief is the absolute oneness of God and the association of worshipping another God is an unforgivable sin. The most important doctrine is that God has revealed his divine will through the Prophet Muhammad and that the holy book of the Quran is the completion of his revelation. Islamic traditions place a strong emphasis on God who is seen as a dominant figure in all aspects of life. Islam has a strong belief in the afterlife, in which human beings are rewarded or punished according to their behaviour on earth. The role of the Holy Quran is seen as the literal word of God. Muslims believe that the Quran is a transcript of parts of a book that is preserved in heaven and in which all that has ever happened and all that ever will happen is recorded. The Quran is viewed as perfect and absolute. The five pillars of Islam are testimony, prayer, payment of the alms tax, fasting and pilgrimage. All five pillars are specific actions which a Muslim must perform in order to become a true Islam. Shariah is traditional Islamic law. It is focused on conflict resolution both between individuals and between individuals and the state and places an emphasis on procedure. Like most religious cultures, Islam classically drew no distinction between religious and secular life. Shariah covers not only religious rituals, but many aspects of day-to-day life. However, this traditional view of religious law is opposed by modern liberal movements within Islam.

Hindu Traditions

Hindu’s believe that people reincarnate under conditions created through the history of their own past behaviours. Each incarnation provides an opportunity to be born into higher and better circumstance. Karma plays a significant role in reincarnation. People who have lived a good life will be reborn in a higher form, and people who have lived an evil life will be reborn in a lower form. The Hindu society has traditionally been divided into four main groups called castes. The four groups are divided into priests, nobles and soldiers, traders and servants. People who are not in one of the four caste systems are people who do jobs that are considered dirty, such as sweeping the streets, and are referred to as “scheduled castes.” In the past the caste system was closely followed and people of high and low castes never mixed. In today’s society, the caste system still exists but it less strict.

Jewish Traditions

The two types of Judaism are Orthodox and non- Orthodox. Orthodox Jews believe that the Jewish laws and teachings of the Torah must be strictly followed today exactly as they were laid down in the time of Moses. Non- Orthodox Jews believe that some of the Torah’s teachings could be adapted to make them more relevant to life in the modern world. Judaism teaches that there is life after death. Jews strongly believe they should try to bring out the best in themselves and others, by striving for justice, showing respect and compassion, and helping those who are sick, poor, or in need. Rosh Hashanah and Yom Kippur are the most important days of the year. Rosh Hashanah means "head of the year" or "first of the year." It is commonly known as the Jewish New Year. Yom Kippur, the Day of Atonement, is when Jews fast and pray all day. It is the holiest day of the Jewish year. Judaism has always held that gentiles are obligated only to follow the seven Noahide Laws; these are laws that the oral law derives from the covenant God made with Noah after the flood, which apply to all mankind. The laws are murder, theft and sexual immorlity are forbidden, eating flesh cut from a still-living animal is forbidden, belief in, and/or prayer to idols is forbidden, blasphemy against God is forbidden, and society must establish a fair system of legal justice to administer these laws honestly.

APPLICABLE CANADIAN LAWS

Each of the religious laws discussed has a significant focus on familial and community relationships and personal conduct which means that in many cases they can informally be administered within the Canadian legal system (ex. Civil and religious marriage); there are, however, laws within the Canadian system that define the role of these traditions in the legal sphere. The legal incorporation of Hindu, Islamic and Jewish Law into Canadian society is based largely on four documents: the UN Universal Declaration of Human Rights, the Canadian Charter of Rights and Freedoms, Canada’s Multiculturalism Act and Ontario’s Arbitration Act. The first three of these deal with the Canadian government’s attitude to different legal traditions insofar as they are a component of different cultural traditions. These define the government’s policy approach towards the way these traditions function informally within the legal framework of Canada. The last document is a controversial law that attempts to allow, in certain circumstances, for parties to deal with private legal matters within their identified cultural-legal tradition.

UN Universal Declaration of Human Rights

As we all know, the UNUDHR was adopted and proclaimed by the UN in 1948 and has since been endorsed by virtually every country in the world. Article 18 of the Declaration states that:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance (UNUDHR, Article 18: 1948).

This document also outlines several legal rights including the right to fair treatment before the law (Articles 7 and 10) and the right to an effective remedy for acts that violate an individual’s rights (Article 8). Furthermore, the Declaration also guarantees rights dealing with familial issues, such as equal rights to marriage and divorce, with regards to gender.

Canadian Charter of Rights and Freedoms

The Canadian Charter was introduced and came into force under the Canada Act in 1982. It reiterates many of the same rights afforded under the United Nations document, including the freedom of religion (Article 2). Article 12 of the Charter also guarantees the “right not to be subjected to any cruel and unusual treatment or punishment”.

The important point in both these documents is that the Canadian government is obliged to secure each person’s right to express their religious beliefs. However, the government also has the responsibility of insuring that religious expression does not cross the line of infringing on other personal rights and freedoms. This is why the case of equal marriage rights and the right not to be subjected to inappropriate punishment is relevant to the discussion of religious law in Canadian society. One cannot violate another person’s rights in the name of religion.

Canada’s Multiculturalism Act

Canada has a strong commitment to multiculturalism and was the first Country in the world to officially adopt a policy of multiculturalism in 1971. The Multiculturalism Act was passed in 1985 and received royal assent (became law) in 1988. Multiculturalism is very tied to religion, as religion is often strongly intertwined with cultural background and ethnic heritage, particularly in the three cases we are discussing. Respect for multiculturalism and inclusion of differing backgrounds means respect of different religious beliefs and their associated legal traditions. The Multiculturalism Act highlights the importance of diversity and tolerance in Canadian society (Available at: http://laws.justice.gc.ca/en/C-18.7/32217.html

). It states that the government of Canada does not just respect a person’s right to religion as a matter of human rights, but that it actively promotes a diversity of cultures and beliefs as a unique characteristic of Canadian society. This means fostering respect for, and creating a place for, the Jewish, Islamic and Hindu legal traditions within the Canadian legal framework.

Ontario’s Arbitration Act

The Arbitration Act was introduced within the province of Ontario in 1991. This act allows for consenting parties to seek traditional dispute resolution pathways in civil matters such as family disagreements, inheritance, business and divorce issues. This usually means that community elders and religious leaders, along with legally trained arbitrators, are brought in to negotiate or provide rulings on disputes between private parties. Obviously, these tribunals do not have the authority to make rulings that contradict with any Canadian laws. All rulings are subject to the approval of the courts and will not be approved if they violate the charter of rights and freedoms.

The Arbitration Act is a critically progressive piece of legislation as it creates a legal space for religious groups and willing individuals to deal with some legal issues in accordance with their own beliefs, however, this law is not without criticisms, which will be discussed later. There are some difficult issues, particularly in regards to whether certain traditions are inherently biased against women.

RECONCILING RELIGIOUS LAW WITH CANADIAN VALUES

The values and principles emphasized under the religious laws of Hindu, Islamic and Jewish traditions (among others) often differ greatly from Canadian principles and Canadian law. Currently, the most dynamic example of this conflict is the debate surrounding the inclusion of Islamic principles in arbitration courts. While many insist that the use of Sharia principles in arbitration is a positive and important step towards multicultural equality, others are concerned that women’s right are being jeopardized under the legislation. Sharia law, they argue, treats women unequally and contradicts their basic rights under the Charter. They are concerned that women will be coerced into consenting to arbitration because they fear being ostracized and alienated from their communities if they do not consent. Also, these groups worry that immigrant Muslim women might not be aware of their rights under Canadian law and might waive their right to legal advice (a right provided under the Arbitration Act). Being unaware of their rights would further reinforce their inequality. Furthermore, these groups are concerned that privatization of dispute resolution is occurring for the wrong reasons – that is, that it is taking place in order to clear up the clogging of the legal system. They also worry that politicians and the Canadian public are apprehensive to voice criticisms of the Act because they fear accusations of intolerance to multiculturalism.

In response to these conflicts and concerns, Marion Boyd, former Attorney General and former Minister Responsible for Women’s Issues, authored a report in December, 2004 entitled “Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion” (a summary is available at www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/executivesummary.pdf).

The report found that “Secular state laws do not treat everyone equally because people’s individual backgrounds lead to differences in the impact of these laws.” Boyd finds that the Arbitration Act is viable and important legislation that should continue to be implemented with particular safeguards. Included among these recommendations for safeguards is the provision for decisions to be amended if the best interests of children are not reflected, and if there is no written form of the decision. Additionally, the report recommends that public and professional legal education be made available. Finally, it asserts that, as decisions are to be given in writing, the government is enabled to oversee arbitration in a formal and comprehensive manner.

The Canadian Council of Muslim Women (CCMW), in response to this report, issued a letter to Premier McGuinty of Ontario, arguing that Boyd’s recommendations are insufficient to ensure the safety and equality of women. They claim that provisions for multicultural inclusion already exist in the Family Law Act that do not impede on women’s freedoms. The Arbitration Act, they claim is unnecessary and harmful. Furthermore, they maintain that using Alternative Dispute Resolution to address the backlog in the justice system is counter-productive and the resources that would be used to implement the safeguards recommended by Boyd would be better employed in improving the existing system through sensitivity training of judges, lawyers, etc.

Those who support the Arbitration Act and Boyd’s recommendations argue that the safeguards adequately address the concerns put forth. The Arbitration Act formalizes practices that are already employed and makes them accountable to Canadian law.

Another area of reconciliation is the granting of “Get” under Jewish law. A “Get” is a written release from marriage which must be provided by both parties. Despite the mutuality of the consent, the male party possesses more power, as he has legal recourse if his wife refuses to grant him “Get:” he can obtain a “heter,” which is a permit to take another wife. The female spouse, however, does not have this option, and must wait for the “Get” before she can remarry, date or even be alone with another man. Furthermore, these women – called “agunah”, - if they remarry without a divorce under Rabbinical law, are ostracized by their communities and any children that marriage might yield are considered illegitimate up to the 10th generation. Although it is a sin to refuse “Get,” some men do so in order to gain advantage in the marriage settlement. In order to help women who are left in this position, Canada has drafted legislation to ensure that religious barriers to remarriage are removed before a civil divorce is granted, for both parties. This legislation is included in the Ontario Family Law Act of 1986 and the Divorce Act of 1991.

TENSIONS BETWEEN CANADIAN AND RELIGIOUS TRADITIONS

The use of religious laws in Canada creates certain tensions which must be addressed.  Canada has a commitment to upholding both a policy of multiculturalism and an obligation to uphold universal human rights. While these are not necessarily in conflict to one another, there do exist tensions which we will explore.

The tensions that we will look at include private vs. public, communal rights vs. individual rights and the church vs. state.  These issues all bear consequences in terms of voluntary arbitration, women’s rights, and universal human rights

Church vs. State

“It is well known that Islam provides a complete system for regulating every aspect of human life. The rules, obligations, injunctions and prohibitions laid down by or derived from the Qur’an and the Sunnah produce a complete picture of the Muslim community, from which no part can be removed without the rest being damaged” (Syed Mumtaz Ali, President of The Canadian Society of Muslims).

Shariah law is intended to be practiced in an absolute manner, encompassing every facet of life.  However, this idea conflicts with the more Western notion of the separation between church and state.  Canada, on the other hand, is a nation made up of many different cultures and religions, and thus operates in a secular framework, while attempting to protect religious rights.  The Canadian Charter of Rights and Freedoms, part of Canada’s constitution, protects both the freedom of religion and equality rights of all residents from infringements by the state.   While the Arbitration Act intends to make a space for different religions within the legal system, it
is questionable as to whether the religious systems are able to operate as simply a part of a different system.   Critics argue that Shariah law cannot simply be customized for other countries, as it is a universal and divine legal framework.

There also exist problems associated with filling positions of arbitration lawyers.  First, there is virtually no formal certification process to designate someone as being qualified to interpret Islamic law.  As such, Ontario-trained lawyers may have little knowledge of these sorts of
proceedings, and therefore may only be able to explain their rights within the Canadian context of the law.


Public vs. Private
Arbitrations are by their nature private.  Some critics argue that the treatment of the Canadian legal system is increasing the privatization of certain areas of the law. The privitization of the law is dangerous, especially for women. (Studies have found that private bargaining in family
law tends to yield inferior results for many women). Within this framework, injustices and inequalities can be perpetrated in the private sphere, remaining hidden from the public.
It is important to remember that arbitration is voluntary.  However, we must question whether or not it is voluntary in a practical sense.  In Jewish Law, using the Beis Din is a mitzvah, a commandment from God, an obligation. In the same way, many immigrants are very susceptible to agreeing to Shariah arbitration, since they know nothing different.  In this situation, they are
not able to claim their rights as they are guaranteed by the Canadian justice system.   Also, it is possible that those who with less power (often women) are coerced into accepting Shariah law, without recourse to secular law, which may be more beneficial to their situation.  With no legal aid or mandatory legal representation, we must seriously question whether women are
truly free in their choice to arbitrate

Collective rights vs. Individual rights
In granting religious groups the right to use their own arbitration, the Canadian legal system is adhering to the collective rights of these groups.  However, there are tensions in whether these collective rights are simultaneously violating individual rights of the members of these groups.
It has been argued that this use of religion for political gain threatens to undermine hard won entitlements to equality and basic human rights.

The main criticism has been with regard to women’s rights.  Given that many of the religions stem from patriarchal traditions, there emerges a possible conflict between the rights of individuals and the rights of the collective group.

While arbitration is an important step in terms of Canadian multiculturalism, we must carefully consider the implications, and understand the tensions that arise.

WHERE ETHNOCENTRISM STOPS AND MULTICULTURALISM BEGINS

Banning of the ‘Hijab’, which is the head covering that some Muslim women wear. France passed a law in March of 2004 that specifies the banning of “conspicuous or obvious religious signs or apparel.” It has been made clear by French authorities that while Jewish skullcaps and large Christian crosses are prohibited, the target of the law is the headscarfs that some Muslim women wear. The law, passed with rare backing from the opposition left, is aimed at safeguarding the French principle of secularism, considered under threat by Muslims who insist on wearing headscarves in schools. It distinguishes between religious apparel, which is forbidden, and traditional apparel, which is acceptable. But how do you tell the difference?

The young Hindu woman, Amandeep Atwal, who was killed by her Father in British Columbia for dating a Caucasian. Certainly this can not be permissible. “What came as a bit of a shock for those covering the case was the attempt to make it into a social issue by supporters of Atwal.” The source of friction was Ms. Atwal's relationship with high school classmate Todd McIsaac. The two met when Ms. Atwal was in Grade 10, and a romance developed.

What does this mean in terms of Canadian jurisprudence? Should the idea of ‘ignorance of the law is no excuse’ still apply? What about in cases where ignorance was not the issue but rather a decision was made based on informed consent? In these cases the law should be served. In the case of Amandeep Atwal, her father certainly had the necessary elements of the crime, the actus reus and the mens rea. He should therefore be punished accordingly. He was sentenced to 17 years in prison on March 5, 2005. In the case of Muslim headscarf’s, the decision on the part of the French parliament, seems fundamentally flawed. The United Nations, specifies, ‘freedom of religion’ as one of the cornerstones of the Charter. It is neither realistic nor feasible to eliminate all documents resulting from western beliefs.