Aqsa Parvez was just 16 when her father, Muhammad Parvez, murdered her.1 Allegedly it was for her audacity to refuse his injunction that she wear the hijab, a Muslim head scarf. According to Aqsa's friends, Aqsa had been at odds with her father and other members of the family over the issue for some time.2 So much so that she had moved out of the house. On December 10, 2007, she went back home to retrieve some clothing when she was confronted by her raging father. Others have called it an "honor killing"—a killing of a family member because they have brought shame on the family. Whatever it may be called, it is clearly an obscene tragedy.
It must be recognized that all of the evidence will not be made public until the trial of Aqsa's father. Those who worked with Mr. Parvez saw him as a religious man. "He was always stopping to take breaks and pray: three, four times a day," said a fellow taxi cab driver.3 If the allegations prove to be true, this case will be the most blatant form of religiously inspired domestic violence in modern Canada.
Religious adherents from other parts of the world trying to make a new life in Western countries, such as Canada, struggle with the pressures of maintaining their traditional religious practices in a very secular culture. If the reports of the circumstances surrounding Aqsa's death are true, it is but one extreme example of a religious family's struggle. Her death has inflamed a growing popular opinion that the state must intervene in the private affairs of religious adherents to protect vulnerable women and children.
The province of Quebec has become the country's lightning rod on the issue of accommodating religious practices. Premier Charest has recently announced that the Quebec Charter (human rights code)8 will be amended to ensure that equality rights trump other rights that come into conflict—including religious freedom. If the proposed legislation passes, the preamble of the Quebec Charter will now include the following paragraph:
"Whereas respect for the dignity of human beings, equality of women and men, and recognition of their rights and freedoms constitute the foundation of justice, liberty and peace."
And there will be added a new section to the Charter: "The rights and freedoms set forth in this charter are guaranteed equally to women and men."9
This legislative initiative was in response to the Quebec Council on the Status of Women call to protect women from discrimination based on claims of religious freedom. The council argued: "The right to equality between women and men ought to be observed under all circumstances and no infringement thereof should take place in the name of freedom of religion."10
The proposed changes to the Quebec Charter appear, at first glance, to do little more than restate what the Canadian Charter of Rights and Freedoms already provides.11 It will, of course, be up to the courts to decide whether in fact there will be a hierarchy of rights where gender equality will trump religious freedom claims.
Annie Lessard expressed the following in an editorial in Quebec's largest English weekly, The Suburban:
According to Beverley Baines, religion is "equality's nemesis,"14 and in discussing the threefold strategy that feminist scholars have advanced to combat religion, she states, "I don't think we fully grasped the threat that the major religions—Christianity, Islam, and Judaism—would pose for women's equality rights."15 The three-part strategy: first, argue in the Supreme Court for the hierarchy of rights—with equality trumping religion when they conflict; second, joint governance of religious practice between the state and religious authorities; and finally, privatizing religion—thereby eliminating religion as an enumerated protected right in the constitution.
Hierarchy of Rights
Current jurisprudence of the Canadian Supreme Court does not allow for one right to trump another. Instead, there is a balancing of all factors in each case—sometimes one interest would take precedence over another in one case but may not in another. Under the proposed hierarchical approach, whenever equality and religion conflict religion must give way to equality. This could be achieved, Baines notes by a re-characterization of the Canadian Charter. The list of enumerated rights such as freedom of religion, conscience, speech, and so on is followed by a later section that states:
"Notwithstanding anything in this charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons."16
Thus, "both religious and cultural claims should be read as subject to the requirements of the guarantee of equality to women. This recognition of women's equality rights is a civic or personhood guarantee, not one defined by the particular religious sect."17
It is not too hard to think of situations in which such interpretation, were it to be adopted by the Canadian Supreme Court, would be problematic. For example, the state could impose "equality" on women though their own personal religious scruples would be against it. We may then be faced with a situation in which the state is unilaterally forcing women to be "free" as defined by the state.
It is being suggested that religious communities operate jointly with the state in certain agreed upon areas of religious practice. This model would first divide the areas of contention between the religious group and the state (e.g., status and property). Neither the religious group nor the state would have exclusive control over a contested arena that affects individuals as members of the religious group or citizens. Finally, the individual would have the right to turn "to the competing jurisdiction when the original powerholder has failed to provide an adequate remedy."18
Again, this is problematic. If a member of the religious community does not have her equality right accepted by the religious community, then she can appeal to the state for redress, forcing the religious community to permit her equality right?! One wonders about such things as religious communities that do not open certain offices (ordination of women?) to women. Even Baines admits that such women ". . . face the real possibility of being shunned by family, friends, and community."19 It will necessarily require not only governmental support for such women to be protected, but also that the religious groups themselves would carry out state dictate to change their ways in compliance with whatever remedy is given to the aggrieved woman.
This proposal suggests that since religious communities are private by nature they should not be given any special protections such as found in the Canadian Charter of Rights. The only freedoms would be those granted to other groups, such as expression and association. "In Canada," Baines argues, "entrenching freedom of religion may have led religious societies to expect more protection for their patriarchal beliefs than is justified in a world that is still striving to recognize and implement women's equality rights."Religious communities "have much to answer for" since women cannot be religious leaders such as "priests, cardinals, popes—in Roman Catholicism" nor take on major leadership roles in "most other major religions."20
The greatest challenge of our modern age is the integration of the practice of religion with secular society. Private practice of religion becomes particularly acute when it interferes with the right of family members to adopt secularism or change religious belief. The religious must come to terms with the fact that family members may choose to live differently from the way they were brought up.
The Western tradition has long held the inalienable right of an individual to choose for themselves what faith or non-faith they will adhere to. Our body polity can never acquiesce to any assertion that seeks to force or compel another to accept a particular religious belief or adopt a religious practice. Especially is this so with the dramatic increase in cultural diversification as a result of the rising tide of immigration from societies that are not amenable to the liberal rights granted individuals in such countries as Canada.
Such an extreme case as the Aqsa one undoubtedly raises the call to limit all religious practice that is deemed to be an affront to women's equality—even those traditions in the West that have been practiced for centuries (think refusal of women's ordination). Much further thought must be given about where the boundary lines are to be drawn—it is a delicate balance of competing rights.
Yet there is no mistake that what happened to Aqsa was nothing short of a monstrous crime. Shahina Siddiqui, the president of the Islamic Social Services Association, stated, "There should be zero tolerance for violence of any kind against women or girls."21 True, indeed! "Young Aqsa Parvez's death cannot be reversed. But in her memory, we can at least challenge those whose message leads to rage and madness."22
Barry W. Bussey, a lawyer, writes from Toronto, Canada.
2 Chris Wattie, "Were Clothes Behind Attack on Teenager?" National Post, December 11, 2007, p. A12.
4 Terry O'Neill, "Their Women Apart," Western Standard, December 4, 2006, p. 28.
5Tarek Fatah and Farzana Hassan, "The Deadly Face of Muslim Extremism," National Post, December 12, 2007, p. A26.
7 Ibid., p. 29.
8 Charter of Human Rights and Freedoms (R.S.Q., chapter C-12).
9 www.assnat.qc.ca/eng/38legislature1/Projets-loi/Publics/07-a063.htm— known as Bill 63: An Act to Amend the Charter of Human Rights and Freedoms.
10 Conseil du statut de la femme, Droit
Author: Barry W. Bussey
Barry W. Bussey is vice-president of Legal Affairs at the Canadian Council of Christian Charities, Elmira, Ontario, Canada.