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The paper makes the case for lifting the prohibition on family conflict arbitration in accordance with religious principles. The freedom of faith is guaranteed by the Canadian Constitution. The fundamental right to freedom of worship, which forbids any form of discrimination based on a person's religious heritage, is established by the Nations Charter of Freedoms and Rights, a section of Canadian legislation. In accordance with the Canadian Charter of Freedoms and Rights, the country of Canada was founded on the principles of the supremacy of the law and the authority of the Almighty God.
Religious arbitrations are one way that religion and the Constitution intersect. Arbitration conducted on the basis of religious beliefs is known as religious arbitration. Religious arbitration always serves as an alternative to judicial processes in courts of law. In the nation of Canada, religious contracts and settlements are pursued through the court proceedings, save for family conflicts in Quebec and Ontario regions.
The resolution to outlaw, the arbitration of family disputes in agreement with religious principles in the province of Ontario, was reached in reaction to political pressure expressed in the form of peaceful demonstrations held in the country. Muslim organizations and women rejected the arbitration of family disputes basing on religious law. The ban was justified because arbitration based on the religious laws would allow religious leaders to use their authority to exploit vulnerable people in the community, such as women and children.
For instance, Canadian Federation of University Women argued that arbitrating family disputes using religious principles would create a society that would discriminate against women, especially those from the minority groups, such as black women and Latinos. Having the law in place would have allowed domination of men and female discrimination. Also, allowing religious arbitration would have condoned and perpetuated the infringement of women and children’s rights. The decision to ban religious arbitration is well informed. Use of religious arbitration to solve family conflicts is a threat to the freedom of human beings. The mounting pressure to have the law banned originated from educated and politically informed women organizations who argued that law was a threat to the gains made in achieving women rights.
The Canadian Charter of Rights and Freedom protects the rights and liberties of women. Sections of the Charter of Rights and Freedoms states that every human being regardless of sex, the color of the skin, or religion is equal before the constitution and have to be protected from discrimination of any form. In particular, Section 28 highlights the commitment to gender equity, emphasizing that every right and liberty contained in the Charter of Freedoms and Rights is provided without discrimination to members of both genders. Allowing arbitration of family conflicts using an alternative legal structure like religious arbitration amounts discrimination of certain members of the community. The constitution is the main point of reference in the administration of justice.
Sharia Law is notorious especially in the Western world like Canada for violating the rights of women and severe case violence against women. Hence; it will be dangerous to mix the principles of Sharia law with the mainstream Canadian laws. For instance, certain Sharia law interpretations find victims of rape guilty of provoking men and result in punishments like stoning.
Another legal argument against using religious Arbitration is its risks to the freedom of religion and worship. Solving family conflicts based on religious principles is not in agreement with freedom of worship. Religious arbitration would infringe people's freedoms and their rights to interpret religious principles personally. Every individual is free to interpret a religious norm or principle in the way he or she wishes. Giving a particular religious standard to follow would force people to act contrary to their interpretation of religious law.
The arguments made against religious arbitration on family matters and conflicts and their threat to women's rights and freedoms are valid. Religious laws always have provisions that infringe on the rights of women. Also, the composition of religious tribunals is a major issue. Under other religious law, for instance, members of the female gender cannot serve on the tribunal. In particular, Islamic courts are very strict when it comes to composition. Under the Canadian constitution, gender discrimination in the appointment of the jury is illegal and legal tribunals should have a certain quota of women. Therefore, religious arbitration of family matters is a threat to the administration of justice.
There is a feeling that even though the existence of Sharia, or Islamic law in the province of Ontario would bring certain religious liberties for some people, the demands placed on Islamic women to meet certain religious responsibilities and duties contained in Sharia law are enormous. Both women and children are profoundly disadvantaged in regards to family inheritance and labor rights.
The banning of the use of religious principles in solving family conflicts would bring sanity in Ontario. Canada is a society that consists of people from diverse cultural backgrounds with different needs. Banning the laws would ensure we have a similar standard of administering justice to everybody regardless of their backgrounds.
The arbitrators selected to sit on tribunals will almost inevitably be fully focused believers and as an outcome, are anticipated to possess the power and means to put influences aimed at guarding their verdicts against getting overruled by superior courts. Although most arbitrators would want to protect their rulings from being overturned, judges handling religion cases possess strong religious motivation, devoid of personal interests. The Canadian Constitution is not sacred and therefore going against it is not regarded as a sin. Law based on religious principles is often perceived as sacred and a reflection of what God desires from his people. They are also morally superior to other laws. In addition, religious leaders exert a lot of power and influence over their followers and believers; as such their decisions are less likely to be opposed. Going against religious leaders is perceived as going against the will of God. The moral and sacred nature of religious principle always work against legal appeals referred to superior courts, such as the appellate courts. Such beliefs prevent the courts of appeal from discharging their mandate as custodians of the Constitution. Therefore, each religious principle connected to family conflict resolution should not be enforced.
Canadian Constitution is the glue that holds the country together, regardless of its large size, different cultures, languages, and religions. The Charter of Freedoms and Rights enhances the cohesion of the diverse nation. Using a religious arbitration other than the Canadian Constitution for settlements of international implications is logical, but it is not valid for settling a family dispute between Canadians in Canada.
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