Research Report

Polygyny and Canada's Obligations under International Human Rights Law

September 2006

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IV. ARGUABLE LIMITS ON WOMEN'S RIGHTS

In addressing polygyny, it may be argued by some that prohibiting the practice may deny men, women and children of the following rights:

A. The Right to Freedom of Religion and Right to Non‑discrimination on Grounds of Religion/Ethnicity

One argument consistently raised against prohibiting or restricting polygyny is that such measures violate the right to freedom of religion. Some commentators have argued, for example, that the right to manifest one's religion or belief as protected under the Universal Declaration, the Political Covenant, and the Declaration on the Elimination of All Forms of Religious Intolerance and of Discrimination Based on Religion or Belief (Declaration on Religious Intolerance)[275] includes the right to observe and apply religious law through religious tribunals in both public and private life.[276] Such arguments are often informed by the fact that some interpretations of a number of belief systems, including Islam, maintain that the observance of religious law is integral to religious practice.[277]

While such arguments are important to consider in the context of polygyny, given that many interpretations of Islamic family law as well as Fundamentalist Mormon teachings permit the practice, there are several reasons why this argument is at best tenuous under international law. Article 18 of the Political Covenant, for example, protects the right to religious freedom, including the freedom:

to have or adopt a religion or belief of his choice, and freedom… to manifest his religion or belief in worship, observance, practice and teachings… .

There is no indication, however, from the text itself or the HRC General Comment on the Article that this includes a right to be governed by religious law in familial matters.[278] That is, the right to religious freedom does not allow personal status or customary law to trump secular law in family matters. Indeed, the Declaration on Religious Intolerance does not include a freedom to be governed by religious law amongst the many protected religious practices it lists.[279]

In addition, the Women's Convention does not provide for any religious or customary law exceptions to its commitment to gender equality. Indeed, the Article 2(f) enforcement provisions of the Convention place a positive obligation on States parties to “modify or abolish existing laws…, customs, and practices which constitute discrimination against women.” Moreover, the Article 3 obligation that States parties take “all appropriate measures, including legislation, to ensure the full development and advancement of women” precludes a cultural or religious defence for discriminatory familial practices that hinder this development.

Even if there were a right to be governed by familial religious law, the Political Covenant does not extend its religious freedom protection to those practices that violate the rights of others. Article 18(3) expressly permits legislative limits on freedom of religion where “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” In Sing Binder v. Canada, for example, the HRC held that the Article 18 religious freedoms of a Sikh author whose religion obliged him to wear a turban could be justifiably restricted by a law that required federal workers to wear safety headgear (a “hard hat”). Here, the legislative aim was to protect federal workers from injury and thus was “regarded as reasonable and directed towards objective purposes that are compatible with the Covenant.”[280] The health harms associated with polygyny may raise precisely such reasonable purposes for prohibiting its practice.

Even more on point, the HRC, in its General Comment 22, noted that in limiting religious practices:

States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and non-discrimination under the Covenant, including the right to equality and non-discrimination on all grounds specified in articles 2, 3, and 26.”[281]

Given that the HRC itself has found that polygamy violates these equality guarantees, international law clearly sanctions domestic legislation that prohibits its practice in order to protect the rights, health and safety of women and children.[282]

The Mauritius Supreme Court applied precisely this reasoning in Bhewa v. Government of Mauritius where it interpreted the national Constitution's religious freedom guarantee in conjunction with the Political Covenant's requirement that women have equal rights within marriage.[283] In doing so, the Court denied a Muslim community the right to apply personal Islamic law governing marriage, divorce, and inheritance. The Court noted the important balance between:

…the duality of religion and state in a secular system. The secular state is not anti-religious but recognizes freedom of religion in the sphere that belongs to it. As between the state and religion each has its own sphere, the former, that of law-making for the public good and the latter that of religious teaching, observance and practice. To the extent that it is sought to give to religious principles and commandments the force and character of law, religion steps out of its own sphere and encroaches on that of law-making in the sense that it is made to coerce the state into enacting religious principles and commandments into law….[284]

Given this balancing between the duality of State and religion within a secular system, the Court dismissed the plaintiff's claim that the freedom to practise their religion required the Mauritian government to impose Islamic rules concerning marriage. In addition, the Court noted that even if one construed religious freedom in the manner argued by the plaintiff, the Mauritius Constitution's exceptions to religious freedom (the same as those noted above in the Political Covenant Article 18(3)) required the country to prohibit polygyny. As a signatory to the Political Covenant, the Court noted that the Article 23(4) marital equality requirement, in addition to Articles 2(1) and (2), 3, 24, and 26 all obligate Mauritius to ensure:

the maintenance of monogamy, including measures designed to safeguard the family and to ensure the largest measure of non-discrimination against women, whether as wives or daughters....[285]

Within the Canadian context, a similar judicial recognition of the boundary between individual religious freedom and the State within a secular system is evident in Kaddoura v. Hammoud.[286] There, the Ontario Court of Justice (General Division) was deciding whether a wife would be able to recover the mahr (a gift or contribution promised by a Muslim husband-to-be to his wife‑to‑be in the event of the dissolution of their marriage) upon her divorce.[287] In rejecting the wife's claim, the Court noted that “the obligation of the Mahr is a religious obligation and should not be viewed as an obligation that is justiciable in the civil courts of Ontario.”[288] In this sense, the Court recognized that the State would not act as a positive agent to enforce religiously-based duties. It noted that:

because Mahr is a religious matter, the resolution of any dispute relating to it or the consequences of failing to honour the obligation are also religious in their content and context… They bind the conscience as a matter of religious principle but not necessarily as a matter of enforceable civil law.[289]

This reasoning can similarly be applied to cases where petitioners are seeking to be governed by religious family law that permits polygyny. Secular states should not positively recognize or apply religious laws that permit the practice, particularly when it undermines the rights and freedoms of others.

Moreover, United States' jurisprudence on Mormon polygyny, most notably Reynolds v. United States,[290] has clearly recognized that although state law cannot interfere with religious belief, it may intervene where religious practices undermine the rights of others. In Reynolds, the Supreme Court noted that while laws:

cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?[291]

As Deller Ross has noted, the important belief-practice distinction drawn by the United States Supreme Court has resonated in other domestic court decisions on polygyny.[292] In each of the two cases where the Bombay High Court in India upheld local statutes prohibiting Hindu polygyny (before national law prohibited it), for example, it cited the belief-practice distinction drawn by the U.S. Supreme Court.[293]

B. The Right to Enjoy One's Culture

Beyond religious freedom arguments, some proponents of polygyny also claim that the practice is integral to the right to enjoy one's culture.[294] They may point to the Economic Covenant's preamble, which states that:

in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his … cultural rights….

While it is clear that international law recognizes a right to enjoy one's culture, this right does not encompass practices that violate the fundamental rights and freedoms of others. Accordingly, Article 4 of the Economic Covenant observes that the rights proclaimed therein can be legislatively limited by States parties for “the purpose of promoting the general welfare in a democratic society.” The elimination of cultural practices that undermine the rights and dignity of women and children is well within this purview of “general welfare.” Moreover, Article 3 of the Covenant requires that States parties “undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights.” Prohibiting cultural practices such as polygyny that undermine women's equality, dignity, health, and economic well-being is part of the important balancing of rights that states must undertake.

In addition to the Economic Covenant, a measured balance between minority cultural freedoms and individual rights protection is also evident in the Political Covenant. Article 27 of the Political Covenant guarantees some cultural rights for minorities by requiring that they “not be denied the right, in community with the other members of their group, to enjoy their own culture…” While this clause would not apply to the cultural norms of the majority group (for example, where polygyny is practised as part of the majority culture),[295] it does on its face provide a negative right for minority groups within a state such as Canada to enjoy their culture. When the provision is read within the context of the remainder of the Covenant, however, it is clear that this right does not include harmful cultural practices such as polygyny. Firstly, Article 23(4) requires States parties to “ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution…” This equal rights and responsibilities mandate cannot be achieved where unequal marital practices such as polygyny are legally permitted or condoned. In addition, Article 2, which guarantees that the rights in the Covenant be recognized “without distinction of any kind, such as… sex…,” along with Article 3, which requires states to ensure the “equal right of men and women to the enjoyment of all civil and political rights set forth in the Covenant,” establish gender equality as fundamental to the Covenant.

To this end, the HRC has stated that the minority cultural rights articulated in Article 27 “do not authorize any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights.”[296] Clearly, as Courtney Howland's analysis indicates, practices that constitute and encourage familial inequality deprive women of some of their core civil and political rights as guaranteed in the Political Covenant and thus are justifiably limited by domestic legislation. Thus, while the HRC accepted a cultural rights argument in Lovelace, namely that Ms. Lovelace's right to her Aboriginal culture had been violated by discriminatory marriage provisions in the Indian Act, it did so within a context where the right to culture coincided with the right to gender equality. Nothing in the Lovelace decision indicates that a free-standing right to culture could trump gender equality norms.

Building on the Economic and Political Covenants, the Women's Convention not only permits the legislative restriction or elimination of gender-discriminatory cultural practices, but in fact requires it. Article 2(f) obliges States parties to:

take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.

Given that CEDAW has characterized polygyny as a gender-discriminatory practice, the Women's Convention not only precludes cultural arguments that justify the practice, but imposes a positive obligation on States parties to abolish it.

Similarly, Article 5(a) calls on States parties to take all appropriate measures:

to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

Here, the Women's Convention strives to ensure that practices such as polygyny that are often based on reproductive stereotypes and the perceived inferiority of women are not legally justified through cultural or customary norms.

Finally, a reliance on cultural arguments to legally justify polygyny fails to account for the positive duty Article 3 of the Women's Convention places on States parties to “ensure the full development and advancement of women.” To this end, States parties shall:

take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

The “development and advancement of women” cannot be ensured where harmful and discriminatory practices are perpetuated in the name of culture. In fact, Article 3's reference to “cultural fields” makes clear that far from being immune, the cultural realm is in fact a central part of States parties' obligations to guarantee women's equality.

C. The Right to Respect for One's Private and Family Life

Another argument raised against the prohibition of polygyny, and particularly against immigration policies that prohibit the entry of multiple wives, is that they violate the right to respect for one's private and family life. Where polygynous unions are unrecognized in the country to which one immigrates,[297] or subsequent wives are prohibited from entering a country,[298] all of the persons involved in that union, including the husband, his wives and their children could argue that their right to family life has been unjustifiably violated.

This right to family life, it has been argued by some commentators, now forms part of an international legal norm against involuntary family separation. Starr and Brilmayer contend that the individual right to privacy, the right to marry, children's rights, parental rights and provisions that protect the family as an institution cumulatively account for such a norm.[299]

In Bibi v. The United Kingdom, the European Commission of Human Rights addressed this issue of involuntary family separation in a case brought by the child of a Bangladeshi polygynous wife.[300] The petitioner claimed that her Article 8(1) right to respect of family life under the European Convention had been violated by United Kingdom immigration legislation that prohibited the entry of more than one spouse per immigrant.[301] In that case, the claimant's father had already brought his second wife to the U.K. along with his children, thus separating them from their mother, who was forced to remain in Bangladesh. While the Commission found that the claimant's Article 8(1) right had been interfered with, it held that the U.K. legislation was justified to preserve a Christian-based monogamous definition of marriage as part of the “protection of morals” exception under Article 8(2) of the Convention.[302]

In reaching this decision, the Commission missed an important opportunity to undertake a rights analysis of polygyny within the immigration context, especially given that one of the exceptions under Article 8(2) is legislation necessary “for the protection of the rights and freedoms of others.” In such an analysis, the Commission arguably should have considered the rights violations associated with polygyny and the ensuing public policy basis for excluding such families in an attempt to discourage the practice on the one hand, and the rights violations associated with involuntary family separation on the other. Despite the Court's weak reasoning, the case nevertheless remains significant in highlighting one of the most difficult transitional scenarios that both international and domestic law must consider.

Indeed, the immediate consequence for this applicant and her mother was that they would remain separated (unless the claimant moved to Bangladesh). Particularly where states such as the United Kingdom or Canada prohibit the entry of multiple spouses because of their own domestic prohibition of the practice,[303] there is a concern that husbands will choose to bring their more favoured, often younger second wife, leaving the first wife vulnerable and isolated within her home country.[304] Some commentators, including Prakash A. Shah, argue that exclusionary immigration policies ignore the extreme vulnerability wives that are left in their homeland face.[305] The remaining wife is often left without any legal recourse to ensure support from her husband. Moreover, even if a remaining wife receives a judgement for spousal support in her home country, her ability to enforce this judgement will depend on whether her home country and her husband's new country of domicile reciprocally enforce each other's judgements. Finally, given the economic challenges many polygynous wives face, their poverty may prevent them from being able to access courts to receive or enforce a judgement for spousal support.

The transitional difficulties that such immigration policies raise should be contrasted, however, with the even greater vulnerabilities that an ‘open-door' policy to polygynous families can create. This is perhaps most evident in the formerly decades-long French policy of legally recognizing and permitting the immigration of foreign polygynous families provided that the marriages were valid in the original jurisdiction.[306] While polygamous marriages could not be lawfully performed in France, the recognition and immigration scheme was motivated by a postwar need for immigrant labour. The policy permitted male immigrants to bring multiple wives into the country on long-term spouse visas.[307] With mainly West Africans taking advantage of the policy, and to a lesser extent Algerians and Moroccans,[308] there were by the 1990s more than 200 000 people living in polygynous families in France. These families became concentrated in enclaves and poorer Parisian suburbs, where, as of the early 2000s, they still made up the majority of some communities.[309]

The shortcomings of such a policy became apparent in the 1980s and early 1990s as African women's advocacy groups within France began organizing to challenge the poor living conditions of polygynous wives.[310] Many of the concerns raised echo those outlined in this report, including harmful co-wife competition, spousal neglect, and coercion into marriage at a young age. Moreover, privacy harms were particularly aggravated in the French setting where accommodation expenses meant that separate living arrangements were not economically feasible for the vast majority of polygynous families.[311] Compounding the psychological, emotional and health harms suffered by polygynous wives was the animosity multiple wives and their children often endured as a result of the broader French populace's repugnancy toward the practice.[312] In addition, second and third polygynous wives at times had difficulty accessing public health care and social security benefits despite having proper residence and working papers. As a result of these cumulative harms, some African women's advocacy groups began to lobby the government to discourage the practice by reforming its immigration policy.[313]

The ensuing French legislative response failed, however, to protect those polygynous families already living in France. Rather than addressing the transitional concerns that emerged as France rightfully moved to discourage a harmful practice, the government tried to retroactively eliminate polygyny even though it was responsible for originally permitting and even encouraging the immigration of such families. The loi Pasqua (named after the then-Interior Minister Charles Pasqua) passed in 1993 changed immigration policy so that only one spouse per immigrant would be issued working papers and a spousal visa.[314] The deeply troubling aspect of the legislation, however, was its retroactive nature.

Instead of applying the loi Pasqua only to new immigrants, the law was applied retroactively to polygynous families already living in France. This meant that unless multiple spouses divorced one another and physically separated their households (which the vast majority could not afford to do), they would lose their residence and working papers, social benefits and be subject to deportation.[315] The severity of the policy was mitigated only by the fact that French law does not permit the deportation of parents whose children are born in France.[316] A circular issued in 2000 further added to the inequity of the legislation by formalizing a policy of not applying the retroactive provisions to the first wife, but only to subsequent wives. This made the position of subsequent wives even more precarious. Given that polygynous families in France and elsewhere are often impoverished, the retroactive denial of social benefits for second wives was particularly devastating.[317] Moreover, despite recent government initiatives to relax the legislation by lowering the standards for polygynous spouses to obtain work permits, for example, “these measures will not eliminate the damage.”[318]

It is clear, therefore, that the prohibition of polygyny calls for a careful balancing of rights and interests during transitional stages in order to protect vulnerable members of polygynous families. The retroactive nature of French legislation failed to protect spouses by forcing many to submit to living and working illegally (as “sans-papiers”).[319] Indeed, a Ministry of the Interior's April 2000 circular supporting these retroactive provisions cited “consistent” holdings of the Conseil d'État that polygamous families were not covered by the Article 8 European Convention on Human Rights protection of private and family life.[320] These holdings are clearly refuted by the European Commission of Human Right's above finding in Bibi that the claimant's Article 8 right to family life had indeed been interfered with (although this was ultimately justified).[321] It is clear that European human rights jurisprudence considers polygamous families to have a right to private and family life. Given this, it is incumbent upon states such as France to provide a level of protection to such families where they exist—something that the loi Pasqua failed to do.

Yet in arguing that France's enforcement of the loi Pasqua violates international legal norms against involuntary family separation, commentators like Starr and Brilmayer have been careful to focus on the law's retroactive nature. They are clear that this claim:

should not be understood to mean that French law may not make any distinctions between polygamous and monogamous marriages, nor that France must authorize the performance of polygamous marriages.[322]

Rather, Starr and Brilmayer distinguish between laws that limit certain types of family formation and those that require retroactive family separation. Thus, while international law clearly prohibits states from limiting the formation of certain types of families (inter-racial marriages, for example),[323] it does not require states to allow the formation of polygynous unions. In fact, it calls on them to eliminate the practice. Although there is less international consensus about the most suitable means to achieve this goal, given precisely the type of transitional challenges that France has faced, there is nevertheless considerable agreement that polygyny violates women's right to be free from all forms of discrimination.

Most states recognize the difference between proactive and retroactive exclusion. In fact the proactive exclusion of multiple spouses even where their marriages were validly performed abroad is the norm among many Western states including now France, the United States, and Canada. While international law prohibits racially-discriminatory immigration policies, commentators have noted that no such prohibition applies with regard to polygynous families.[324]

Significantly, CEDAW has not made any statements as to whether countries should distinguish between monogamous and polygynous unions for immigration purposes. The transitional concerns surrounding involuntary family separation and the particular vulnerability faced by those wives forced to remain in their homeland may explain why consensus around immigration policy is more fractured. Despite the lack of agreement on these difficult transitional issues, this should not blur the strong consensus among treaty bodies, nation states, and international law generally that polygyny is a violation of women's right to be free from all forms of discrimination and thus should not be encouraged by national laws that permit or recognize its performance within their jurisdiction.

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