The Honourable Michael Bryant
Attorney General of
Dear Attorney General Bryant,
Amnesty International is aware that you are presently considering
your government’s position regarding the use of religious laws, pursuant to
Around the world, women are frequently subjected to serious discrimination with respect to family matters such as marriage, divorce, remarriage, custody of and access to children, division of marital property, and spousal support; and also matters related to inheritance. The results can be devastating: women killed and injured in so-called honour crimes, used as a commodity to resolve disputes, unable to escape from spousal violence, denied custody of their children, or forced to live in extreme poverty after divorce or the death of a spouse. In our work to ensure the protection women’s human rights, we have encountered far too many situations where the exercise of cultural, traditional and religious beliefs contributes to discrimination and violence against women.
Governments are obliged to take active steps to protect
women from such violence and discrimination and ensure that their right to
equality is fully protected in the resolution of any family law or inheritance
disputes. This fundamental right of women to equality is most comprehensively
enshrined in the United Nations Convention
on the Elimination of all forms of Discrimination against Women. This
critical international human rights treaty was ratified by
Sadly, the continuing need for the Convention is evidenced daily in the widespread and grave human rights violations experienced by women around the world. At the heart of discrimination and other human rights abuses against women is unequal access to power and thus unequal access to the means to protect their rights. The Convention is a valuable tool, relied upon by women’s rights defenders to protect the rights of women in every country. Importantly, the Convention ensures that governments are not able to assert that matters involving the equality, safety or well-being of women are issues of private concern, beyond the responsibility of the state. Governments have a positive obligation to enact laws and institutions to protect women from discrimination, be it in the home, the community or the public domain. The Convention clearly identifies a range of steps that governments must take to protect women from discrimination in all aspects of their lives, including with respect to family and inheritance matters.
Amnesty International is concerned that when the Arbitration Act is used to resolve disputes that involve the internationally recognized human rights of vulnerable or disenfranchised groups, such as the equality of women and the best interests of children, it is imperative that the arbitration process and the system of law that is applied scrupulously upholds those rights.
In Canada, the right to women’s equality and the protection of the best interests of children in family and inheritance matters have been developed by the courts and are protected through legislation such as the federal Divorce Act and provincial level laws dealing with marital property, child custody and support, spousal support, and inheritance, all of which are interpreted and applied within the context of the Canadian Charter of Rights and Freedoms.
The court system, operating within this legal framework, is
expected and required to ensure that
Given the ongoing vulnerability of women around the world to violence and discrimination, governments must be vigilant in ensuring that laws that protect the basic rights of women are in place and are consistently enforced, certainly including in the areas of family law and inheritance. Amnesty International is of the view that the particular vulnerability of women to serious human rights abuses in areas that are often argued to be of “private” concern, such as within the family, requires governments to vigorously comply with their obligation to enact, apply and enforce legislation that provides women with the protection from discrimination that is their basic right.
When governments allow what is effectively the privatization of the legal processes that will be applied to resolve family and inheritance disputes they may directly or indirectly abdicate their responsibility to live up to this obligation. Allowing a variety of different legal systems to be used within any one country to resolve family and inheritance disputes raises the very real risk that some of those processes will provide inconsistent and even lesser levels of protection for women’s rights.
Parallel and alternative legal mechanisms may in some contexts help to enhance or strengthen the protection of fundamental human rights of particular sectors of society, such as when traditional criminal justice processes are applied within Indigenous communities. Such systems need to function in concert with formal legal systems and in cooperation with government authorities to ensure full compliance of international human rights standards. However, based on our experience and the experience of other human rights organizations, we have reason to believe that many dispute resolution processes that apply religious laws are significantly discriminatory towards women.
At this point in time, Amnesty International is concerned
that it has not been adequately demonstrated that religious laws, including
Muslim, Jewish and Christian legal codes, can be applied under
As highlighted above, the use of religious and customary
laws in resolving criminal and civil disputes is an issue of concern to Amnesty
International globally. We have
documented alarming levels of discrimination and violence, particularly for
women, in the use of these laws.
 For example: It’s in our hands: Stop Violence against Women, Amnesty International, 2004.
 Convention on the Elimination of all forms of Discrimination against Women, (hereafter “Women’s Convention”), article 1.
 Convention on the Rights of the Child, article 3.
 Women’s Convention, article 2, including article 2(e) specifying that women must be protected from discrimination “by any person, organization or enterprise.”
example: see previous references in footnote #1 and